R v Hall - [2015] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HALL
[2015] SASCFC 104
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
30 July 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence. The appellant pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm. The victim and appellant were friends but relations between them were periodically tempestuous. The offending occurred after the victim and appellant had attended the funeral of a mutual friend. The appellant was an alcoholic and had consumed a significant amount of alcohol on the day of the offence. She informed a friend that she was angry at the victim and was going to stab him. She concealed a knife in her pants, went to the victim’s home and stabbed him a total of seven times. The appellant’s criminal antecedents were relatively minor and she had no history of violent offending. The sentencing Judge imposed a term of imprisonment of eight years and six months, having made a reduction of three years and six months on account of her plea of guilty. A non-parole period of five years was fixed.
Whether a starting point of 12 years’ imprisonment before reduction for the plea was manifestly excessive. Whether a non-parole period of almost 60 per cent of the head sentence was manifestly excessive.
Held per the Court (dismissing the appeal against the head sentence):
The offending was very serious and the victim’s injuries were life threatening. The appellant’s intoxication does not mitigate the significant element of premeditation. Although a starting point of twelve years is high, it was not manifestly excessive in the circumstances.
Held per Kourakis CJ and Gray J (allowing the appeal against the non-parole period):
1.       The appellant is unlikely to commit another violent offence and has strong prospects of rehabilitation.
2.       In these circumstances a non-parole period of nearly 60 per cent of the head sentence is manifestly excessive.
3.       Appellant resentenced to a non-parole period of four years.
Held per Stanley J (dissenting) (dismissing the appeal against the non-parole period):
1.       In fixing the non-parole period, the sentencing judge had proper regard to the seriousness of the offending, the personal circumstances of the appellant and the prospect of rehabilitation.
2.       I am unable to say that a five year non-parole period, in the context of a head sentence of eight years and six months, is so high as to be outside a reasonable range for a non-parole period proportionate to the head sentence.
3.       I would dismiss the appeal against the non-parole period.
Criminal Law Consolidation Act 1935 (SA) s 23(1), referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Shrestha (1991) 173 CLR 48; R v Creed (1985) 37 SASR 566; R v Clancy [2013] SASCFC 63, considered.

R v HALL
[2015] SASCFC 104
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ
KOURAKIS CJ.
Pleading background and sentence

On 1 August 2014, the appellant pleaded guilty to aggravated assault causing serious harm with intention to cause serious harm.[1] The maximum penalty for that offence is 25 years imprisonment. On 22 October 2014, the appellant was sentenced to eight years and six months imprisonment, with a non-parole period of five years. That sentence commenced on 31 December 2013.
[1] Criminal Law Consolidation Act 1935 (SA), s 23(1).
I granted the appellant permission to appeal against sentence on 1 December 2014. The appellant contends that her sentence was, in all of the circumstances, manifestly excessive.
I would allow the appeal to the extent that I would reduce the appellant’s non-parole period from five years, to four years. I leave the head sentence unchanged. My reasons follow.
Factual circumstances
The circumstances surrounding the offending arise from the relationship between the appellant and the victim, Peter Fletcher. The victim had been a friend and lived on the same street as the appellant for more than 20 years. The appellant would regularly visit the victim’s unit for alcohol and cigarettes, and company. They would both consume significant quantities of alcohol. The relationship was a volatile one, and the appellant and victim would regularly argue and fight. In particular, the appellant alleged at various times that the victim physically and sexually assaulted her, and damaged her property. In sentencing submissions, it was not disputed by the prosecution that the relationship had been abusive over a long period of time, and the appellant fell to be sentenced on that basis.
The appellant and the victim had a mutual friend, Graham Stewart. In late 2013 Mr Stewart’s health deteriorated. He passed away on 16 December 2013. Prior to Mr Stewart’s death the appellant had power of attorney over his property and cared for him. During the weeks preceding Mr Stewart’s funeral, the appellant remarked to other people that she was becoming increasingly angry with the victim about various issues, including a washing machine that Mr Stewart had given the victim. She said that she hated the victim, and wanted to, or was going to stab and kill him.
On 31 December 2013 the appellant attended Mr Stewart’s funeral at Centennial Park. She had prepared a eulogy for the occasion, and made the other necessary arrangements for the funeral. At the funeral, the victim complained to the appellant about various aspects of the funeral, including the eulogy. The appellant was upset by the victim’s criticisms. The funeral concluded at about noon and the appellant spent the remainder of the afternoon drinking with others at the Marion Hotel. At approximately 5.30pm she spoke to a friend on the telephone and told her that she was going to stab the victim. At that time the appellant sounded “pretty incoherent and hysterical.” The appellant continued drinking alcohol at home.
Between approximately 6.00pm and 6.15pm that evening, the appellant walked across the road from her home towards the victim’s unit with a large kitchen knife, which she concealed in her pants. The victim was standing just outside the door of his unit. When she was approximately eight feet away from the victim, the appellant removed the kitchen knife from her pants, and stabbed the victim seven times. The victim tried to escape by staggering along the street while the appellant followed him.
The victim was found in the lobby corridor of his block of units, severely injured. He was rushed to Flinders Medical Centre and placed in an induced coma, suffering extensive injuries, multiple organ failure and septicaemia. The victim was required to undergo multiple major surgeries and was fitted with a stoma and colostomy bag, which may be permanent. The victim’s mobility and psychological state have also been affected by the offending.
After the offending, the appellant returned to her home, told one of her friends that she had stabbed the victim, and consumed half a bottle of champagne. A short time later, police attended at the appellant’s home and arrested her. Upon her arrest, the appellant was observed to be moderately to grossly affected by alcohol, and her intoxication worsened in the time after her arrest due to the champagne that she had consumed immediately before her arrest.
An expert report was prepared regarding the appellant’s blood alcohol level, and level of intoxication at the time of the offending. Dr White, Head of the School of Pharmacy and Medical Sciences at the University of South Australia estimated that at the time of the offending, the appellant’s blood alcohol was 0.305%. Dr White’s view was that a person with this blood alcohol content who did not lapse into unconsciousness would have a very high level of tolerance for alcohol, would be unlikely to fully appreciate the consequences of their actions, would experience disinhibition that can result in aggression, and could perceive provocation in situations where a sober person would not. On appeal, the respondent disputed Dr White’s precise calculations, but accepted that it was appropriate for the Court to have regard to the fact that the appellant was an alcoholic who was moderately or grossly intoxicated at the time of the offending, and had a dysfunctional relationship with the victim. The respondent also accepted that it was appropriate for the Court to apply its understanding of the thought processes and level of culpability of such a person in that situation.
Personal circumstances
The appellant is a 57 year old woman. She was born in the United Kingdom and migrated to Australia at the age of 11. She had a good relationship with her mother, but her father was physically abusive towards her.
The appellant completed high school before working as a mechanic, and then as a registered nurse. The appellant was a skilled soccer player, playing for Australia before falling pregnant with her first child in 1990. The appellant has been in receipt of a disability support pension since 1999 due to a back injury.
The appellant has two adult children and an ‘on and off’ long-term domestic partner. She has a very close relationship with her elderly mother and prior to her arrest assisted with caring for her. A number of character references were provided to the Court and included details of the appellant’s care for others.
The appellant’s offences are directly related to the appellant’s extensive history of severe alcoholism. The manager of the bottle shop at the Castle Tavern near the appellant’s home described the appellant as a regular customer, and recalled occasions when the appellant would arrive at the bottle shop extremely intoxicated. The gaming manager of the Castle Tavern recalled that an ambulance sometimes had to be called for the appellant after she had passed out, and that she was an aggressive and abusive drunk. More generally, a full-time bar attendant at the Castle Tavern also described the appellant as “continually being drunk”. She has previously been restricted from attending or purchasing alcohol at the Castle Tavern.
The appellant has some history of minor offending, primarily relating to driving under the influence of alcohol.
There was some improvement in the appellant’s extreme drinking habits after she was raped in 2010, however she deteriorated again by 2013.
Psychological reports
Dr Raeside interviewed the appellant for the purpose of sentencing. During those interviews the appellant stated that she had been sexually assaulted by a relative of her father when she was 12 or 13 years old. In 2009 she started taking antidepressants. She was also raped in 2010. This event had a significant impact on the appellant; she developed symptoms post-traumatic stress disorder, returned to living with her mother, refused to leave the house, and suffered insomnia, nightmares, flashbacks and intrusive memories. As a result she started taking sedatives.
Dr Raeside also observed that the appellant significantly down-plays her alcohol consumption and does not admit to the full extent of her alcoholism. Her medical records reveal that she suffers health consequences related to her alcoholism.
Dr Balfour also assessed the appellant. His view was that the appellant was unlikely to offend again in a similar manner, the offending was highly situational, and that she posed no ongoing risk to the victim. The sentencing Judge accepted that the appellant was remorseful for her actions.
Drs Raeside and Balfour recommended alcohol rehabilitation programs, and Dr Balfour noted that the offending has caused the appellant to totally abstain from alcohol.
The sentencing Judge’s approach
The learned sentencing Judge made detailed sentencing remarks, outlining the background of the relationship between the appellant and victim, the appellant’s personal circumstances, and the seriousness of the offending in detail.
The sentencing Judge began with a starting point of 12 years imprisonment, reduced by almost 30 per cent to eight years and six months imprisonment, on account of the appellant’s guilty plea. His Honour considered that there was not good reason to suspend that sentence.
Submissions on appeal
The appellant appeals on the ground that the sentence was manifestly excessive. In particular, counsel for the appellant submitted that the appellant had been subjected to ongoing and constant abuse from the victim, including numerous assaults, both sexual and violent, throughout the period of her friendship with the victim.
During her interview with Dr Raeside, the appellant detailed sexual assaults against her by the victim, and also incidents in which the victim kicked in the front door of her home and damaged her property. Counsel for the appellant submitted that there were also unreported incidents. The sentencing Judge had before him a number of police reports detailing incidents between the appellant and Mr Fletcher. In particular:
1The appellant made a police report stating that on 8 June 2001 Mr Fletcher punched and kicked her repeatedly in the head and chest, causing broken ribs. Mr Fletcher was charged with aggravated serious criminal trespass and two counts of assault occasioning actual bodily harm;
2The appellant filed a further police report stating that on 28 or 29 June 2001, Mr Fletcher threatened her to drop charges;
3On 31 March 2003, a restraining order was made against Mr Fletcher for a period of two years; and
4The appellant reported that on 13 April 2011 Mr Fletcher struck her with his zimmer frame.
The appellant submitted that the sentencing Judge’s observation on the relevant police reports that “there was something to all of that” failed to address the impact that this history had upon the appellant’s offending: it was not merely an angry reaction to a dispute about a washing machine, but arose from a deep-rooted anger that had developed over more than a decade of physical and sexual abuse, triggered by the events at Mr Stewart’s funeral. It was submitted that this motive should mitigate penalty. This Court was referred to R v Clancy.[2] The appellant’s severe intoxication at the time of the offending was also referred to in support of this ground
[2] [2013] SASCFC 63.
Counsel for the appellant also submitted that the appellant was a good candidate for rehabilitation, remorseful and unlikely to reoffend, and had a relatively minor criminal history. It was said that a non-parole period that represented a lower than normal percentage of the head sentence was therefore appropriate.
Counsel for the respondent submitted that the appellant had not identified any specific error, and that the sentencing Judge had taken into account all relevant factors. In light of these factors, the starting point of 12 years imprisonment was appropriate given the pre-meditation and viciousness of the attack. It was noted that the appellant’s offending was not in any way unique, as many offences involving pre-meditated violence arise from a defendant responding to perceived wrongdoing, and that alcohol is often involved.
The respondent rejected the argument that the appellant’s motive for the offending was mitigatory. It was argued that the restraining order in place between 2003 and 2005 was far removed in time from the offending and that from 2005 until the offending, the appellant and victim had continued their relationship. It was the respondent’s submission that the pre-meditated nature of the offending, statements by the appellant that she hated the victim, and the triviality of the trigger for the offending are reasons why the offending was particularly serious and gave rise to the need to personally deter the appellant from future violent offending.
With respect to rehabilitation, the respondent argued that the appellant’s prospects were negatively affected by the appellant’s inability or unwillingness to acknowledge her longstanding pattern of alcohol abuse and, in any event, the reduction of almost 30 per cent for her guilty plea was generous.
In sum, the respondent considered that the five year non-parole period and the head sentence were an appropriate balance of the appellant’s personal circumstances, and the seriousness of the violent offending with an offensive weapon.
Discussion
The relevant question is whether the sentence is within the appropriate range of what is required for personal and general deterrence, taking into account the underlying cause of the offending, namely the appellant’s level of intoxication and relationship with the victim, and the appellant’s personal circumstances.
The offending was extremely serious in intent, execution and result. The victim’s injuries were life threatening. He spent much time in hospital and has ongoing physical disabilities that are likely to be permanent, and serious psychological sequelae.
The appellant’s intoxication at the time of the offence in itself is not strongly mitigatory and, in any event, there is a need to deter offences of violence committed under the influence of alcohol. I would reject the submission that this offence was largely motivated by the assaults allegedly committed by the victim on the appellant. They were relatively minor and followed by periods of reconciliation.
The salient aspect of this offending is the chronically depressed and alcoholic state of the appellant. The sporting skill and resilience of the appellant which won her a position in the Australian National Women’s Soccer team, her work skills which qualified her both as a mechanic and nurse and the care which she continues to show her mother and friends, evidence the potential the appellant had to be a productive member of the community. It is likely that her father’s abuse of her as a child and the rape by a male relative in her teens tragically undermined that potential.
The overt, almost fatalistic way in which the appellant embarked upon the offending suggests that it was the product of deep personal psychological dysfunction. There is every reason to confidently accept Mr Balfour’s assessment that the offences were “highly situational specific”.
For these reasons, I have equivocated over whether the starting point of 12 years was manifestly excessive. The appellant’s mental state can, I think, be distinguished from the angry hatred which fuels many other offences of this kind.
Ultimately I am not persuaded that the head sentence is manifestly excessive.
I reach a different view with regards to the non-parole period. The non-parole period of five years represents nearly 60 per cent of the head sentence. As I have said, the circumstances surrounding the offending, although not mitigatory, are such that the appellant is unlikely to commit another violent offence. The report of Dr Balfour shows that the appellant recognises that her alcohol consumption has been a negative influence in her life, and she is motivated to abstain from alcohol in the future. The sentencing Judge also acknowledged that the appellant is remorseful for her offending. Given all of these factors, it is my view that the non-parole period imposed does not adequately reflect the appellant’s chronic alcoholism and depression, her prospects of rehabilitation and the low likelihood of reoffending. It was manifestly excessive. I would impose a non-parole period of four years.
Conclusion

The sentencing Judge did not err in imposing a head sentence of eight years and six months imprisonment. The non-parole period of five years imprisonment is manifestly excessive. I would leave the head sentence unchanged. I would reduce the non-parole period to four years imprisonment.
GRAY J.
This is an appeal against sentence.
On 2 January 2014, the defendant and appellant, Diana Patricia Hall, was charged on Information with the offence of attempted murder and, in the alternative, with the offence of aggravated causing serious harm with intent to cause serious harm.[3] On 1 August 2014, the defendant pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm. The prosecution accepted this plea in satisfaction of the Information. Following her plea, the defendant was committed for sentence in the District Court. The defendant faced a maximum term of imprisonment of 25 years.
[3] Criminal Law Consolidation Act 1935 (SA) section 23(1).
The sentencing Judge imposed a term of imprisonment of eight years and six months, having made a reduction of three years and six months on account of the plea of guilty. A non-parole period of five years was fixed.
The Judge’s summary of the circumstances of the offending was not challenged on appeal. The incident giving rise to the offence occurred on 31 December 2013. Earlier that day, the defendant and the victim had attended the funeral of a friend. The defendant gave a eulogy, the terms of which upset the victim. The victim suggested to the defendant that the eulogy was not very good and that the eulogy was more about herself than the deceased. The funeral concluded at about midday and thereafter the defendant consumed a considerable amount of alcohol. During the afternoon, it is apparent that the defendant decided to stab the victim. According to the police statements, at about 5.30 pm the defendant told a friend that she was going to do so.
The defendant and the victim lived in the same suburban street. At about 6.00 pm the defendant took a large kitchen knife and walked across the road to the victim’s home. The victim at this time was standing just outside the door of his unit. The defendant hid the knife in her pants. The victim thought that the defendant was coming over to have a New Year’s beer with him. However, this was not the defendant’s intention. When a few feet from the victim, the defendant pulled the knife from her pants and stabbed the victim. The defendant continued to stab the victim while he tried to escape. Witnesses observed the defendant following the staggering and bleeding victim along the street. A short time later the victim was found lying in a pool of blood in his unit block. The victim had been stabbed a total of seven times.
The victim was rushed to the Flinders Medical Centre. He was found to be suffering extensive injuries, including multiple organ failure and septicaemia. He was placed in an induced coma. The victim’s injuries were critical and life threatening. He underwent a number of major surgical interventions. He remained in the Intensive Care Unit for a month and then in hospital care for a further two weeks. His injuries required installation of a stoma and colostomy bag. It is unclear whether he will recover such that the bag can be removed. As a result of his injuries the victim continues to suffer from a substantial reduction in his quality of life.
The defendant returned to her home covered in blood and told at least one friend that she had stabbed the victim. She continued to consume alcohol. A short time later the police attended and arrested the defendant. The police noted her condition at that time as being moderately to grossly affected by alcohol. Her condition then deteriorated. Blood tests confirmed a high level of alcohol in the defendant’s bloodstream.
It is relevant to record that there had been some history between the defendant and her victim. They had lived nearby in the same suburban street for more than 20 years. Over that time, they became acquainted and had ongoing contact. The defendant would visit the victim. They would smoke and drink together, and provide each other with company. Generally they got on well but there were times when they would argue and fight. On a number of occasions the defendant complained to the police that the victim had assaulted her but the complaints never proceeded to trial. Over a two year period, the victim was the subject of a restraining order taken out by the defendant. As the Judge noted, it was clear that both the defendant and the victim were significant consumers of alcohol and that the defendant, in particular, was a regular user and abuser of alcohol, and had been so for many years. It was the defendant’s case that she continued to seek the companionship of the victim as a consequence of her alcoholism and loneliness, and that their relationship could be described as a deep-rooted systemic dysfunctional relationship. At times, their relationship was described as tempestuous.
A particular incident had occurred toward the end of 2013. As their friend’s health deteriorated, and shortly before his death, the defendant was given the friend’s power of attorney. The friend had given the victim his washing machine when he moved to a nursing home. According to the victim, the defendant became angry and wanted the washing machine returned. This may have been a factor leading to the clash occurring at the time of the funeral.
The defendant at the time of sentencing was aged 56 years. She had emigrated from the United Kingdom when aged 11 years. She had problems with a physically abusive father. She completed year 12 and worked for a time as a registered nurse. She was proficient at soccer and represented Australia in that sport. The defendant had been receiving a disability support pension due to disabilities following an injury to her back. The defendant has two children, both of whom are now adult. She has had an on-and-off relationship with her current partner for about 20 years. The Judge noted that the defendant had been an alcoholic who had abused alcohol for a significant part of her life. There was an incident in 2010 when she was raped. However, charges did not proceed.
A psychiatrist, Craig Raeside, reported that the defendant did not suffer from any psychiatric illness, although it was likely that she had suffered a post-traumatic stress disorder as a result of the rape. Dr Raeside said that there was limited evidence to suggest ongoing acute symptoms from this disorder at the time of the subject offending. Having regard to the history of long-term alcohol abuse, he recommended a neuropsychological assessment. This assessment did not disclose any evidence of brain impairment or damage. Character references were tendered at the sentencing hearing which indicated the good regard in which the defendant was held. The Judge accepted that the defendant was remorseful for her conduct and had prospects of rehabilitation.
The defendant’s criminal antecedents included offences of dishonesty and a number of alcohol-related driving offences. The defendant had received the benefit of suspended terms of imprisonment in 1989, 1994 and 2011 in respect of the alcohol-related driving offences.
The Appeal
Counsel for the defendant submitted that the sentence imposed was manifestly excessive. It was said that the starting point of 12 years’ imprisonment before reduction for the plea was too high and manifestly so. It was further complained that the fixing of a non-parole period of almost 60 per cent of the head sentence was manifestly excessive. It was not suggested that there was any identifiable error of sentencing principle or that it could be demonstrated that the Judge had failed to have regard to any material considerations. It was contended, however, that error must have occurred because of the manifestly excessive sentence imposed. It was submitted that matters of particular importance included: the past abuse inflicted on the defendant by the victim over a prolonged period of time; the immediate stressful circumstances leading to the stabbing; the defendant’s alcoholism and level of intoxication at the time of the offending; the absence of any criminal antecedent for any offence involving violence to the person; and what were described as the defendant’s excellent prospects for rehabilitation. Particular emphasis was placed on the opinion of the neuropsychologist that the defendant was “unlikely to reoffend in a similar manner. Her offence was highly situationally specific and occurred in response to a build-up of a number of stressors over time.” It was pointed out that the defendant was clearly remorseful and had been motivated to totally abstain from the use of alcohol. It was said that the defendant presented no ongoing risk to the victim and that the risk of further offending was remote.
Counsel for the Director submitted that there was no sentencing standard in respect of this particular offence. He pointed out that the maximum penalty of 25 years provided substantial scope for the Court to address the range of behaviours that might be captured by the offence. Particular emphasis was placed on the acknowledgement by the defendant through her plea that she intended to cause serious harm. It was stressed that the defendant made her decision to attack the victim while in her home, informed a friend of her intention, armed herself with a knife, hid the knife about her person, walked to the victim’s home, located the victim outside his unit, pulled the knife from her pants and without warning stabbed the victim seven times. As her victim attempted to escape she continued to chase him until he collapsed. It was contended that the serious injuries sustained by the victim demanded the conclusion that the offending was very grave. It was said that, notwithstanding the history between the defendant and her victim, the offence remained very serious and that it could not be said that a starting sentence of 12 years before a reduction for the plea was outside the Judge’s discretion.
It was further submitted by the Director, that notwithstanding the personal circumstances of the defendant, the non-parole period should also reflect the gravity of the crime, and when regard was had to that fact, together with the punitive, deterrent and preventative purposes of punishment, it could not be said that this aspect of the sentence was manifestly excessive.
Discussion
The defendant’s offending was very serious. Notwithstanding the fact that the defendant was affected by alcohol, it may be safely concluded that there was a significant element of premeditation. The nature of the offending coupled with the severe injuries sustained by the victim called for a substantial head sentence. Although the starting point of 12 years was high, I do not consider it to be outside the proper sentencing discretion of the Judge. Ultimately, it is the head sentence to be imposed that has to be considered, namely a sentence of imprisonment of eight years and six months. I am not persuaded that this sentence was manifestly excessive.
When considering the complaint about the non-parole period, I consider that there were a number of factors of particular relevance. Although premeditated, the circumstances and stress associated with the friend’s funeral are relevant. As the neuropsychologist observed, the “offence was highly situationally specific” and there had been “a build-up of a number of stressors over time.” It is of particular significance that his unchallenged opinion was that it was unlikely that the defendant would “reoffend in similar manner.” Apart from alcohol-related offending, the defendant’s criminal antecedents were relatively minor. Importantly, she had not, on any prior occasion, committed any offence of violence. When regard is had to all the circumstances, and to the different weight that may be given to particular factors when considering a non-parole period, I have reached the conclusion that the fixing of the non-parole period at almost 60 per cent of the head sentence was manifestly excessive. I consider that a non-parole period of four years would be appropriate.
Conclusion
I would allow the appeal for the limited purpose of reducing the non-parole period from five years to four years. Otherwise I would confirm the sentence imposed by the District Court Judge.
STANLEY J: I have had the advantage of reading the reasons of the Chief Justice and Gray J. I agree with the reasons of their Honours for dismissing the appeal against the head sentence. I regret that I differ with their Honours on the appeal against the non-parole period. In my view, the non-parole period of five years is not manifestly excessive.
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[4] where Doyle CJ said:[5]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, ... This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
[25]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 (1936) 55 CLR 499 at 504-505, 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”.
[4] [2009] SASC 346, (2009) 266 LSJS 283.
[5] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[6] does the appeal court have the power to quash the sentence passed below.
[6] [1936] HCA 40, (1936) 55 CLR 499.
In R v Shrestha,[7] the High Court said all considerations relevant to the sentencing process are relevant both to the head sentence and the non-parole period. As King CJ said in R v Creed,[8] the non-parole period as much as the head sentence “must reflect the basic consideration of justice that the punishment should fit the crime”.
[7] [1991] HCA 26, (1991) 173 CLR 48 at 68-69.
[8] (1985) 37 SASR 566 at 568.
In my view, the appellant has failed to establish that the non-parole period of five years, representing nearly 60 per cent of the head sentence, is not properly proportionate to the gravity of the offending. Even allowing for the appellant’s unfortunate personal circumstances, this was a vicious, sustained, violent and premeditated attack using a knife on a defenceless person. The victim has been left with extensive and permanent disabilities which will significantly erode his quality of life. Those disabilities have been explained in the reasons of the other members of the Court. I need not dilate upon them.
Further, for the reasons explained by the Chief Justice, I do not consider that the appellant’s intoxication is mitigatory. There is a need to deter offences of violence committed under the influence of alcohol. The community has a legitimate interest in deterring and punishing alcohol fuelled violence.
Simply put, I am unable to identify any error in the approach adopted by the sentencing judge. Whether I would have imposed the same non-parole period is not to the point. I am unable to say that a five year non-parole period, in the context of a head sentence of eight years and six months, is so high as to be outside a reasonable range for a non-parole period proportionate to the head sentence. In fixing the non-parole period, the sentencing judge had proper regard to the seriousness of the offending, the personal circumstances of the appellant and the prospect of rehabilitation.
I would dismiss the appeal.