R v Hallcroft

[2016] SASCFC 137

Supreme Court of South Australia

(Court of Criminal Appeal)

R v HALLCROFT

[2016] SASCFC 137

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek, The Honourable Justice Stanley, The Honourable Justice Lovell and The Honourable Justice Doyle)

14 December 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - PARTICULAR CASES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE

Appeal by the Director of Public Prosecutions against non-parole period imposed for murder.

The respondent pleaded guilty to murder on his first arraignment in the Supreme Court and was sentenced to life imprisonment. The learned trial Judge applied a starting point of 22 years in fixing the non-parole period and reduced it by 31.8 per cent to 15 years.

The circumstances of the offending were that the respondent stabbed the deceased in the chest and head and then later severed the deceased’s body and placed it in a wheelie bin in the street. In sentencing the respondent, the Judge observed that the objective circumstances of the respondent’s offending were very serious. She accepted that the respondent’s mild intellectual disability placed his behaviour in context but observed that many offenders with mental deficiencies commit dreadful crimes and to that extent there was nothing unusual about the respondent’s deficits. The Judge stated she was reducing the head sentence by 30 per cent but miscalculated and reduced it by 31.8 per cent.

The Director appeals on the grounds that the non-parole period of 15 years is manifestly inadequate and that the judge erred in failing to make a finding as to whether special reasons existed pursuant to s 32A(3) of the Criminal Law (Sentencing) Act 1988 (CLSA). The Director also appeals on the ground that the judge erred in fixing a non-parole period of 15 years as there were no special reasons to justify a non-parole period below the mandatory minimum non-parole period and that the Judge erred in imposing a discount in excess of 30 per cent.

Held per Kourakis CJ (Peek, Stanley, Lovell and Doyle JJ agreeing), dismissing the appeal:

1. Section 10C and s 32A(2) of the CLSA should be read together and the discretions they confer exercised coherently.

2. If the application of s 10C, without considering a guilty plea, would result in a non-parole period that is substantially less than 20 years then generally there are special reasons to apply a non-parole period of less than 20 years for an offence of murder.

3. Generally, a finding of special reasons to reduce the non-parole period will not support reducing that period for the offence of murder to the full extent possible pursuant to s 10C. The statutory minimum non-parole period will limit such a reduction through the operation of s 10C(4) of the CLSA.

4. There are special reasons for allowing a non-parole period of less than 20 years in this case by virtue of the appellant's intellectual disability, socio-economic status and chronic alcohol abuse.

5. A proper consideration of those special reasons would have yielded a non-parole period of 16-18 years.  It would be unduly harsh to the respondent, who is already serving a 15 year non-parole period, to upwardly review that period.

6. Application for permission to appeal refused.

Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 32, s 32A; Criminal Law Consolidation Act 1935 (SA) s 83GF, s 269A; Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) s 10; Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) s 7, referred to.
R v A, D (2011) 109 SASR 197; R v Barnett (2009) 198 A Crim R 251; R v Frencken [2012] SASCFC 71, applied.
R v Stewart (1984) 35 SASR 477; R v Wong (2001) 207 CLR 584; R v Jones (2010) 108 SASR 479; R v Ironside (2009) 198 A Crim R 251; R v Harkin [2010] SASCFC 39; R v Groth [2013] SASCFC 108; R v Shannon (1991) 57 SASR 14, considered.

R v HALLCROFT
[2016] SASCFC 137

Full Court:  Kourakis CJ, Peek, Stanley, Lovell and Doyle JJ

1. KOURAKIS CJ:        This is an appeal by the Director of Public Prosecutions (‘the Director’) against a non-parole period imposed on a conviction of murder.  On 12 October 2015 the respondent pleaded guilty to the murder of Mr Allan Ryan. On 14 April 2016 the respondent was sentenced to imprisonment for life. The learned trial Judge applied a starting point of 22 years in fixing the non-parole period and reduced it by 31.8 per cent to 15 years.

   The offence

2. The charges against the respondent arose out of offending which occurred on 1 January 2015 at the respondent’s home in Aldinga. The deceased, Mr Ryan, was an acquaintance of the respondent and had spent New Year’s Eve at his home.

3. When Mr Ryan visited his brother with an unopened slab of beer at around 4.00 pm on New Year’s Eve, he was already drunk.   Mr Ryan and his brother each had seven or eight beers together before the deceased left at about 8.00 pm.

4. The respondent told police that later that night he and Mr Ryan had been drinking in his home on New Year’s Eve.  Mr Ryan left but sometime later returned and then refused to leave when asked. The respondent awoke at 3.00 am on 1 January 2015 and found Mr Ryan lying on his couch. The respondent became upset when he discovered that Mr Ryan had consumed his prescription medication.  The respondent confessed that he then stabbed Mr Ryan in the chest and head with a kitchen knife. He also admitted that he used a wooden club in the attack.   The respondent went back to sleep.  When he awoke later that morning around 6.00 am or 7.00 am, he saw the deceased covered in blood with a knife in his head. 

5. Text messages which were before the Judge on the sentencing hearing showed that on the morning of 1 January 2015, the respondent attempted to enlist help to dispose of Mr Ryan’s body.   The respondent sent messages to Mr Lee Barrass through the telephone of Mr Barrass’ partner. The respondent told Mr Barrass that Mr Ryan was ‘lying on the couch with a knife hanging out of his head’.  Mr Barrass thought that the respondent was joking.  The respondent then sent him a series of text messages asking for Mr Barrass’ help.  Mr Barrass eventually answered a second call, in which the respondent told him that he had killed Mr Ryan and that he needed Mr Barrass’ help cleaning up. Mr Barrass refused to help.

6. The respondent admitted that he severed Mr Ryan’s legs at the knees and then placed his body in a wheelie bin which he left in the street.  Between 9.00 pm to 10.00 pm on 1 January 2015, the respondent moved the wheelie bin down the street to the location where it was found two days later.  The respondent concealed Mr Ryan’s possessions, a pushbike and backpack, under a cover in the spare room of his house.

7. At about 11.00 am on 3 January 2015, an Aldinga resident discovered Mr Ryan’s body in the wheelie bin on the footpath about 100 metres away from the respondent’s house.

8. When questioned by police, the respondent initially told them that he had known Mr Ryan for a few months but that he had not seen him for about a week.  The respondent claimed that on New Year’s Eve he had been drinking alone in his home.  After some further questioning, and on being informed that the police intended to search his house, the respondent confessed to killing Mr Ryan.

   An early plea

9. The respondent first appeared in the Magistrates Court on 5 January 2015.

10. On 9 September 2015 counsel for the respondent advised the Director that the respondent intended to plead guilty to manslaughter.  On his committal to the Supreme Court on 11 September 2015, the Director sought an adjournment of four weeks to consider the offer. The Magistrate refused the adjournment.

11. The solicitor for the respondent filed an affidavit which deposed that the respondent had accepted that if the Director did not accept his plea to manslaughter, that he would plead guilty to murder.  On the committal hearing before the Magistrate, the respondent appeared via audio visual link.  The affidavit deposes that due to the media presence in open court, the solicitor was unable to obtain the respondent’s instructions.  For that reason, the respondent pleaded not guilty to murder and guilty to manslaughter.

12. On 1 October 2015 the Director advised counsel for the respondent that the manslaughter plea was not accepted. On 12 October 2015 on his first arraignment in the Supreme Court, the respondent pleaded guilty to murder.

    Sentencing submissions

13. There were competing submissions on the extent of the reduction to which the respondent was entitled for his guilty plea. The Director submitted to the Judge that the respondent was entitled to up to 20 per cent discount for his guilty plea at his first arraignment hearing, pursuant to s 10C(2)(c) of the Criminal Law (Sentencing) Act 1988 (SA) (‘CLSA’).

14. The respondent submitted that 30 per cent was the appropriate reduction due to the unforeseen circumstances that arose on the committal date which had prejudiced the respondent’s opportunity to plead guilty and receive that reduction, pursuant to s 10C(2)(d) of the CLSA.

15. The Judge considered the negotiations in the Magistrates Court prior to and on the date the respondent was committed for trial, and exercised her discretion in affording the respondent a discount of 30 per cent for his plea of guilty pursuant to s 10C(2)(d) of the CLSA.

16. The Judge requested a psychological report outlining the respondent’s intellectual capacity to enable her to make an adequate assessment of his cognitive capacity.  The Judge received both psychological and psychiatric reports which showed that the respondent suffered a mild intellectual disability with an intelligence level in the bottom two percentile of the population for his age group. 

17. The reports detailed the respondent’s difficult and troubled childhood, which led to years of alcohol and drug abuse.  That abuse further reduced his already impaired cognitive function.  The reports did not find that the respondent suffered from a psychotic illness, neurodevelopmental disorder or severe personality disorder. 

18. Counsel for the respondent informed the Judge that the respondent was remorseful for his actions and regretted his offending.  However, the respondent maintained that Mr Ryan was a deeply unpleasant man who had threatened and bullied him in the presence of his son.   The bullying in the presence of his son was said to be particularly significant because of the importance the respondent attached to the filial relationship.  It was a major stabilising influence on him. Counsel for the respondent explained to the Judge that a mild intellectual disability meant that the respondent was unable to deal with crises.  Counsel explained that the offending occurred in a moment of personal crisis caused by the respondent’s anxiety at the deceased continually returning to his home.

19. The respondent did not have a significant history of prior offending. 

    The sentencing remarks

20. The Judge described the ‘objective circumstances’ of the respondent’s offending as ‘very serious’ but, for the reasons which I explain below, I doubt that her Honour was referring to the statutory concept of ‘objective seriousness’ found in s 32A(1) of the CLSA.

21. The Judge observed that the respondent’s comments to others about the murder appeared ‘at first sight’ to show a complete absence of any insight, remorse or contrition for what was a ‘savage violent murder’.  From those remarks the Judge viewed the objective circumstances, namely the way in which Mr Ryan was killed and the manner in which the respondent disposed of his body as very serious. However, the Judge remarked that the psychological and psychiatric reports placed some of the respondent’s ‘apparently gormless behaviour’ in context.  The Judge accepted that the respondent had come to feel remorse and regret albeit tempered by his insistence that the deceased was an ‘unpleasant man’ who had threatened and bullied him in the presence of his son. 

22. The Judge observed that it was ‘deeply disturbing that a member of our community, even taking into account your difficulties and intelligence level, would kill another man for a few sleeping pills and some pain killers’, but accepted that the outward reason for the murder might reflect the respondent’s cognitive and drug induced mental deficiencies.

23. The Judge observed that many offenders who commit dreadful crimes are at the lower end of intellectual scale and, to that extent there was nothing particularly unusual about the respondent’s deficits.  As general observations, those comments may be accepted.  It remains the case, however, that intellectual disabilities may lessen the moral culpability of the offender because the offender’s appreciation of the consequences and wrongfulness of the conduct may be dimmed by his or her cognitive deficiency.  Moreover persons living with intellectual disabilities often experience difficulty in obtaining and maintaining accommodation, in feeding themselves and meeting the other expenses of their generally impoverished lives.  For that reason they are more vulnerable to external threats.  Challenges which many people would find trivial and insignificant, may appear to them as existential threats warranting even unlawful action in self-preservation.

24. The Judge concluded her sentencing remarks as follows:

    All in all, this is a very sad, if not pathetic case.  Not only have you destroyed the life of Mr Ryan but you have effectively destroyed your own life as well.  While it can be accepted that you were a vulnerable and anxious man, you must understand that respect for human life is the mark of any civilised community.  Your actions display such and [sic] egregious departure from the standard of decent and civilised human behaviour that you must now accept the legal consequences of that departure.

    It follows that your offending cannot be categorised as at the lower end of the range of objective seriousness for the crime of murder to which the mandatory minimum non-parole period of 20 years applies.  The starting point I have taken for the non-parole period before taking into account your entitlement to full credit in respect of the matters I have canvassed this morning including, in particular, a 30 per cent discount for the plea, will be 22 years.  After allowing for all these matters, the non-parole period will be 15 years.

    Both the head sentence and the non-parole period will date from the date you were taken into custody which was 3 January 2015.

25. Read in context, I understand the Judge’s remarks to fix a notional non-parole period of 22 years but for the guilty plea before applying, but miscalculating, a reduction of 30 per cent pursuant to s 10C(2)(d) of the CLSA. I so read the Judge’s remarks because the reduction from 22 years to 15 years is 31.8 per cent, just a fraction over the statutory 30 per cent. Moreover if the Judge had meant to include, as literally read the remarks suggest, other mitigating factors in the reduction to 15 years, her Honour must have placed very little weight on them. On the other hand, the starting point of 22 years appears properly to reflect a holistic evaluation of both the circumstances of the offending and, leaving his guilty plea to one side, the respondent’s personal circumstances. The serious aspects of the offending included the opportunistic attack on a sleeping victim, the method of disposal of the body and the respondent’s apparently callous statements to others about the murder. The respondent’s mitigating personal circumstances included his intellectual disability, chronic alcohol abuse and fraught socio-economic situation.

26. The Judge did not expressly refer to the statutory prohibition against imposing a non-parole period less than the mandatory minimum unless there were special reasons to do so.  Implicitly the Judge must have found that there were special reasons.  From the Judge’s report to this Court, it appears that her Honour did not explicitly deal with the question of special reasons in her remarks because she understood the Director of Public Prosecutions to have accepted that, if the application of the statutory reduction for the respondent’s guilty plea, after the selection of an appropriate starting point, would result in a non-parole period of less than 20 years there were special reasons to depart from the statutory minimum non-parole period.  The Judge may have been mistaken in so understanding the Director’s submissions.  That need not be finally determined for reasons which I explain below.

    The Appeal

27. The Director applies for permission to appeal on the grounds that:

    ·The non-parole period of 15 years is manifestly inadequate.

    ·The Judge erred in failing to make a finding as to whether special reasons existed pursuant to s 32A(3) of the CLSA.

    ·The Judge erred in fixing a non-parole period of 15 years as there were no special reasons to justify a non-parole period below the mandatory minimum non-parole period or, in the alternative, a non-parole period of 5 years below that mandatory period.

    ·The Judge erred in imposing a discount in excess of 30 per cent.

28. It will be observed that despite the submissions made to the Judge, the Director does not complain on appeal that the Judge erred in not limiting the reduction to 20 per cent.

    A coherent reading of ss 10C, 32(5)(ab), and 32A of the CLSA

29. Section 10C of the CLSA 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%; 

    (c)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%; 

    (d)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

    (e)     within 7 days immediately following—

    (i)an unsuccessful application by or on behalf of the defendant to quash     or stay the proceedings; or 

    (ii)a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,

    determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;

    (f)     in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.

    (3)If—

    (a)     a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and

    (b)     the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—

    (i)the court did not sit during that period; or

    (ii)the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or

    (iii)the court did not list the defendant's matter for hearing during that period; or

    (iv)the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period,

    the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.

    (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.

    …

1. Section 32 of the CLSA requires sentencing courts to fix a non-parole period and in the case of murder fixes a minimum period of 20 years:

   32—Duty of court to fix or extend non-parole periods

   (1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—

   (a)     if the person is not subject to an existing non-parole period—fix a non-parole period; or

   …

   (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;

2. Section 32A of the CLSA benchmarks the minimum period of 20 years to offences at the lower range of ‘objective seriousness’ and confers a limited discretion to impose a lesser period:

   32A—Mandatory minimum non-parole periods and proportionality

   (1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.

   (2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—

   (a)     if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or

   (b)     if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.

   (3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:

   (a)     the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;

   (b)     if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;

   (c)     the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.

   (4)This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act.

3. Sections 32(5)(ab) and 32A of the CLSA were enacted in 2007[1] and commenced operation on 1 November 2007. Section 10C was inserted by a later amendment to the CLSA commencing operation on 11 March 2013.[2]

   [1]    Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) ss 9, 10 (No 27 of 2007).

   [2]    Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) s 7 (No 49 of 2012).

4. In the course of the appeal, submissions were made on whether one of either s 10C or s 32(5)(ab) of the CLSA should be given primacy over the other. The parties put competing arguments on whether s 10C or s 32(5)(ab) were more properly categorised as general or special provisions and on the significance of the chronology of the making of the amendments. Ultimately nothing turns on those considerations because the provisions are not directly inconsistent.

5. The respondent did not submit that s 10C of the CLSA required a reduction of the non-parole period below the statutory minimum, by force of that provision alone, and without any need to establish special reasons in accordance with s 32A(2) of the CLSA.

6. That concession was properly made. To construe s 10C of the CLSA as impliedly repealing s 32(5)(ab) of the CLSA would require the Court to read a further placitum into s 32(5) of the CLSA to deal specifically with the fixing of non-parole periods for defendants who pleaded guilty to murder. That implied placitum would need to provide that on a conviction for murder following a guilty plea, the non-parole period shall be calculated by selecting, as a notional non-parole period, the period which would have been fixed in accordance with the benchmark established by s 32A(1) of the CLSA if the defendant had been convicted following a trial, and then reducing it in accordance with s 10C of the CLSA. That contention is untenable. The constitutional function of this Court in construing legislation does not extend to such a substantial rewriting of the provisions of the CLSA.

7. For his part, the Director did not contend that s 10C had no application in fixing a non-parole period for murder. That contention would also have been untenable. Even before the enactment of s 10C of the CLSA, non-parole periods for murder were subject at common law to a reduction for a plea of guilty. Moreover one of the enlivening conditions of the discretion conferred by s 32A(2) of the CLSA is the making, and factual circumstances, of a guilty plea.

8. Both parties rightly accepted that the provisions could be read together and coherently without one impliedly abrogating the other. Sections 10C and 32A(2) of the CLSA can be read together because both provisions confer discretions. The former with respect to the extent of the reduction for a guilty plea[3] and the latter allowing the fixing of a non-parole period below the statutory minimum.[4] Statutory discretions are governed by the legislative context in which they are conferred. Once it is accepted that s 10C of the CLSA does not impliedly repeal s 32A of the CLSA, and that s 32(5)(ab) of the CLSA does not preclude any reduction pursuant to s 10C, the relevant questions are:

   ·in what circumstances will the denial, by reason of the statutory minimum, of a reduction of the minimum non-parole period in accordance with s 10C of the CLSA, amount to special reasons within the meaning of s 32A(2)(b) of the CLSA;

   ·if special reasons are found to exist, to what extent does the imposition of the statutory minimum non-parole period by s 32(5)(ab) CLSA constrain the extent of the reduction which should be made to a non-parole period for murder pursuant to the discretion conferred by s 10C(2) CLSA.

   [3]    Criminal Law (Sentencing) Act 1988 (SA) s 10C(2).

   [4]    Criminal Law (Sentencing) Act 1988 (SA) s 32A(2).

9. 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.

10. My reasons for so holding follow.

11. Section 32A(1) of the CLSA sets a benchmark for non-parole periods for murder by reference only to the objective seriousness of the offence. However, in fixing a non-parole period in a particular case, for example, an offence of murder, s 32A(2)(a) of the CLSA requires the Court to consider whether a longer period than 20 years is warranted ‘because of any objective or subjective factors’. On the other hand, s 32A(2)(b) of the CLSA confers a discretion to fix a shorter period if there are special reasons to do so arising out of the prescribed matters, of which one is an objective factor whilst the remaining two are subjective factors.

12. In R v A, D[5] this Court remarked on the regime imposed by ss 32(5)(ab) and 32A of the CLSA as follows:

    [35]If considering whether a non-parole period longer than the mandatory period should be fixed, the court must consider all “objective or subjective factors affecting the relative seriousness of the offence”. This must mean all factors that are relevant according to established principles. It is well-established practice to treat all relevant factors in sentencing as either objective or subjective. That must be what Parliament had in mind. Accordingly, the court will ask itself whether the factors that are relevant to the fixation of a non-parole period according to established principles support or warrant a longer non-parole period than 20 years.

    [36]But the mandatory period is not just a number. It identifies a non-parole period appropriate “for an offence at the lower end of the range of objective seriousness”. So the court must ask itself whether, bearing in mind that a 20 year non-parole period is an appropriate non-parole period for an offence of murder at the lower end of the range of objective seriousness, this particular offence (considering all relevant factors according to established principles) warrants a longer non-parole period.

    [37]By characterising the mandatory period as appropriate for “an offence at the lower end of the range of objective seriousness”, s 32A will increase non-parole periods. Experience indicates that 20 years is a high non-parole period for an offence of murder “at the lower end of the range of objective seriousness”. Parliament must have intended to encourage longer non-parole periods for the offence of murder.

    [38]In this way the mandatory or prescribed period operates as a yardstick or benchmark. Parliament has chosen to identify 20 years as an appropriate non-parole period for an offence of murder “at the lower end of the range of objective seriousness”. It is a strange benchmark. The benchmark is identified by reference only to objective seriousness. The court has to compare a particular case, taking account of objective and subjective factors, with a benchmark that is affected by objective factors only. The court is not able to compare like with like. The process is not easy to explain. But this is the statutory task.

    [5] (2011) 109 SASR 197 at [35]-[38].

13. The meaning of ‘objective seriousness’ is not altogether clear.  With respect to what fell from Gray J in R v Barnett[6] it cannot mean just the objective, or conduct elements, the actus reus, of the offence. Section 32A of the CLSA deals with sentencing, and, not surprisingly therefore, Parliament eschewed the term ‘objective elements’ which is more apt to a consideration of guilt or innocence.[7]  In any event limiting the term objective seriousness to the actus reus of an offence would be impossibly narrow as Gray J himself observed when he included, within the meaning of objective seriousness, the conduct of the victim.  There are many diverse circumstances which may affect the objective seriousness of offences generally, and the offence of murder in particular, which extend beyond the elements of the offence. 

    [6] (2009) 198 A Crim R 251 at [22].

    [7]    See Criminal Law Consolidation Act 1935 (SA) s 269A.

14. The motive for an offence of murder, for example whether it is a planned mercenary killing on the one hand, or a spontaneous emotional reaction on the other, also affects its objective seriousness.  Whether the mental element was an intention to kill or to cause grievous bodily harm, may also affect the objective seriousness of the offence even though intention is a mental element of the offence.  Objective factors too, beyond the objective elements of the offence, may make an offence more or less serious.  As Gray J observed in R v Barnett the absence or presence of contributing conduct by the victim is one such factor which is recognised by s 32A(2)(b) of the CLSA. So too are surrounding circumstances, like the risks to which the offending exposes, or the harm it causes, others.

15. The concept of objective seriousness is also used in s 83GF(7) of the Criminal Law Consolidation Act 1935 (SA) in prescribing a standard non-parole period for organised crime offences. In that context too the objective seriousness of an offence may depend on a wide range of factors extending beyond the conduct elements of the offences or the offender’s antecedent personal circumstances.

16. The grading of seriousness for offences of murder essayed by King CJ in R v Stewart[8] remains useful in this respect:

    I must say, however, that violent and terrible as the crime was, it does not fall into the category of the worst types of murder calling for the longest non-parole periods.  Examples of categories of murder calling for longer non-parole periods than I will fix in the present case, would be multiple murders, terrorist murders, murders in the course of organised crime and certain other types of premeditated, cold-blooded murder, murders committed in the course of armed robbery and certain types of sexual crime, and murder of prison officials, police officers and other officials connected with law enforcement and the administration of justice.

    That, of course, is not intended to be an exhaustive list of categories of murders which would be treated more seriously than the present one.  Nor is the present crime in the least serious category.  Examples of types of crimes in which shorter periods of non-parole should be considered are those committed by first offenders, and particularly by first offenders in compassionate circumstances, unpremeditated killings occurring in a sudden quarrel or emotional disturbance, and crimes in which the proved intent was not an intent to kill, but an intent to do grievous bodily harm.

    [8] (1984) 35 SASR 477 at 478-479.

17. The relevant sentencing circumstances which do not affect the objective seriousness of the offence itself are subjective factors which may reduce the non‑parole period below that which would otherwise be warranted by sole consideration of the objective seriousness of the offence.  Even though sentencing factors are sometimes described either as objective or subjective the denotation of those terms is nowhere comprehensively set out.  Speaking generally, subjective factors are the offender’s personal circumstances and include such things as his or her developmental history, education, socio-economic position, health, previous character, insight, prospects for rehabilitation and contrition.  The making, timing and circumstances of a guilty plea are also subjective factors. 

18. The dichotomy between ‘objective’ and ‘subjective’ factors established by s 32A(2) of the CLSA must be construed consistently with the expression ‘objective seriousness’ in s 32A(1) of the CLSA. Objective factors are therefore generally the circumstances attending the commission of the offence and subjective factors are those personal to the offender. By reference to s 10(1) of the CLSA I would describe the considerations in placita (a) to (f) as objective factors, and the considerations in (k) to (n) as subjective factors. Contrition and cooperation with police, considerations (g) and (h), are also subjective factors which, by sentencing practice in this State, and in accordance with s 10C of the CLSA, are dealt with discretely in the sentencing process. Reductions in the sentence on their account are separately identified. The remaining placita of s 10C(1) of the CLSA are sentencing principles rather than descriptions of circumstances which may attend the commission of an offence.

19. Subjective factors will not always be mitigatory. Personal circumstances may indicate a need for greater personal deterrence and/or poor prospects of rehabilitation. In such a case some of an offender’s personal circumstances may counterbalance in part, or completely, other personal circumstances which mitigate the offending. So much is consistent with common law sentencing practice. On a literal reading of s 32A(2)(a) of the CLSA it suggests that a non-parole period greater than 20 years could be justified by reference to subjective factors alone. It would be an error to so read it. Read in the context of the common law of sentencing, personal factors like prior convictions cannot increase a sentence beyond that which is warranted by its objective seriousness. In fixing a non-parole period all of the objective and subjective factors will be weighed against the benchmark of 20 years which is set by reference to objective factors alone. If an offender’s subjective personal circumstances, on balance, give little or no reason to mitigate penalty, condign punishment reflecting the objective seriousness of the offence will be imposed.

20. The benchmark, fixed, as it is, by reference only to objective seriousness makes no allowance for subjective factors which are mitigatory.  Accordingly the non-parole period fixed for an offence which is relatively more serious might nonetheless be no more than the minimum because the subjective factors in mitigation counterbalance the offence’s more serious objective factors.  Moreover, even though an application of the 20 year benchmark to an offence at the lower end of the scale of objective seriousness, committed by an offender with strongly mitigating subjective factors, would ordinarily result in a non-parole period of less than 20 years, a non-parole period of 20 years must still be fixed because, subject to the special reasons discretion, the benchmark is also the statutory minimum.

21. In short, and leaving aside a reduction in the non-parole period for special reasons, the effect of s 32(5)(ab) of the CLSA is that there is no scope to give a defendant who commits an offence at the lower end of the range of objective seriousness and has mitigating personal circumstances, any lesser non-parole period than another defendant who commits an offence at the lower end of objective seriousness but has few, or no, mitigating personal circumstances. Nor is there any scope to give a defendant who commits an offence which is objectively more serious but has strong personal circumstances in mitigation, including for example a plea of guilty at the earliest opportunity a non-parole period of less than 20 years, when the circumstances would have so demanded when measured against the 20 year statutory benchmark, as a result of the statutory minimum.

22. One would therefore expect, in practice, to see a crowding of non-parole periods around the 20 year minimum. The table below shows that to be the case. The distribution of non-parole periods fixed for murder since the enactment of s 32(5)(ab) of the CLSA are closely concentrated around the 20 year benchmark.

23. The minimum non-parole period has therefore distorted the proportionality between offences and offenders which the common law of sentencing attempts to achieve.  In R v Wong[9] Gleeson CJ emphasised the importance of consistency as follows:  

    [6]One of the legitimate objectives of such guidance is to reduce the incidence of unnecessary and inappropriate inconsistency. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.

    [7]Most sentencing of offenders is dealt with as a matter of discretionary judgment. Within whatever tolerance is required by the necessary scope for individual discretion, reasonable consistency in sentencing is a requirement of justice. The Judicial Officers Act 1986 (NSW) identifies sentencing consistency as a legislative objective. That Act established the Judicial Commission of New South Wales to monitor sentences and disseminate information about sentences “for the purpose of assisting courts to achieve consistency in imposing sentences” (s 8). How does collecting and disseminating information about sentences help to fulfil the statutory purpose? The obvious legislative assumption is that knowledge of what is being done by courts generally will promote consistency. That assumption accords with ordinary practice. Day by day, sentencing judges, and appellate courts, are referred to sentences imposed in what are said to be comparable cases. There will often be room for argument about comparability, and about the conclusions that may be drawn from comparison. But sentencing judges seek to bring to their difficult task, not only their personal experience (which may vary in extent), but also the collective experience of the judiciary. Communicating that collective experience is one of the responsibilities of a Court of Criminal Appeal.

    [9] (2001) 207 CLR 584 at [6]-[7].

1. Departure from the principle of consistency engenders a sense of grievance on the part of the offender who is more severely dealt with, and is antithetical to the demands of justice. 

2. Section 32A(3) of the CLSA limits the circumstances which may support a finding of special reasons pursuant to s 32A(2) of the CLSA to the following:

   ·circumstances in which the victim’s conduct substantially mitigated the offence;

   ·the fact of and circumstances surrounding a guilty plea; and

   ·cooperation given in the investigation or prosecution of an offence.

3. The discretion conferred by s 32A(2) of the CLSA should be exercised with a keen appreciation of the scope it provides to ameliorate the extent to which the statutory minimum precludes courts from considering strongly mitigatory factors in particular cases.

4. In R v A, D[10] this Court explained the proper approach to a finding of special reasons pursuant to s 32A(2) of the CLSA in terms with which I respectfully agree:

   [41]If “special reasons” exist, the court can fix a non-parole period shorter than the mandatory period, but only if those special reasons support fixing a non-parole period that is shorter than the prescribed period.  This means that the “special reasons” must warrant or support the fixing of a non-parole period shorter than the mandatory period.

   [42]The court has to ask itself whether, bearing in mind that a non-parole period of 20 years is appropriate for an offence at the lower end of the range of objective seriousness, the special reasons present in the case warrant or support a shorter non-parole period for this offence and this offender.

   [43]This is a complicated process.  It will cause difficulty for sentencing courts.  We cannot identify any good reason for sentencing in this fashion.  But that is Parliament’s choice.

   [44]It is necessary to emphasise that the presence of “special reasons” does not mean that the court can fix a non-parole period in accordance with existing or established principles.  The presence of factors amounting to “special reasons” merely enables the court to consider whether those factors warrant or support a non-parole period shorter than the mandatory period.

   [10] (2011) 109 SASR 197 at [41]-[44].

5. In R v A, D this Court held that special reasons ‘may be found in any case, anywhere on the range of objective seriousness’[11] approving the observations of this Court in R v Jones[12] and disapproving the observations made in R v Ironside,[13] R v Barnett[14] and R v Harkin.[15]However, and importantly, the Court observed that whether or not the special reasons warranted a non-parole period shorter than 20 years was another matter.[16] 

   [11] (2011) 109 SASR 197 at [46].

   [12] (2010) 108 SASR 479 at [53]-[54] per Anderson J, at [109]-[110] per David J, [172]-[173] per Peek J.

   [13] (2009) 104 SASR 54 at [56] per Doyle CJ.

   [14] (2009) 198 A Crim R 251 at [52] per Vanstone J.

   [15] [2010] SASCFC 39 at [40] per Anderson and Kelly JJ.

   [16] R v A, D (2011) 109 SASR 197 at [46].

6. I would respectfully agree with the substance of those observations. However I take issue with the terminology insofar as it contemplates that special reasons may be found to exist even though they do not actually support the fixing of a lower non-parole period. The phrase ‘if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period’ is a compendious expression. Special reasons should not be conflated with the prescribed matters to which the court’s consideration is confined by s 32A(3) of the CLSA. Special reasons cannot exist in the abstract, unconnected to a consideration of whether they support a reduction in the minimum non-parole period. Special reasons only exist if they are reasons to fix a non-parole period that is shorter than the prescribed period. It is because special reasons are only those reasons which support the fixing of a non-parole period less than the prescribed minimum period, that special reasons are more likely to be found if the non-parole period, which would have been fixed if the discretion in s 32A(2) of the CLSA discretion were not exercised favourably, is close to 20 years.

7. In R v Barnett[17] I explained:

   [91]One thing is relatively clear. The prescribed matters cannot be considered as mere pegs upon which to hang the special reasons hat. They must alone or in combination establish a persuasive case for departure from the general rule, by showing that the purpose of the rule will not be advanced by its application to the particular case. In practice, therefore, one would only expect to find special reasons in the case of an offence which is at the very lower end of the range of seriousness and where, by reason of the prescribed matters, the imposition of the mandatory minimum would appear to be disproportionate and oppressive.

   [92]If the question whether there are special reasons to reduce the mandatory non-parole period is answered in the affirmative, then the next step is to determine the length of the non-parole period. In exercising the discretion to “fix such shorter non-parole period as it thinks fit”, the Court must have regard to all of the circumstances ordinarily relevant to the fixing of a non-parole period. However, the Court must also have regard to the benchmark established by the mandatory minimum.  To do otherwise would lead to significant disparity between those cases where there are special reasons and those where there are not. An approach which creates two quite distinct and disparate sentencing regimes, which are divided by a finding of special reasons, will inevitably engender a sense of grievance on the part of those who are without special reasons and should be eschewed.

   (citations omitted)

   [17] (2009) 198 A Crim R 251 at [91]-[92].

8. It is in cases which are at the lower end of the objective seriousness that the matters to which the court is confined by s 32A(3) of the CLSA are more likely to warrant a non-parole period less than 20 years. However if those matters are very strongly mitigatory, special reasons warranting a non-parole period less than the prescribed minimum may also be found in offences higher on the scale of objective seriousness. My observations in R v Barnett[18] should be so understood. 

   [18] (2009) 198 A Crim R 251 at [91].

9. The Court in R v A, D also considered whether, in fixing a non-parole period when special reasons have been found to exist, the discretion to reduce the mandatory minimum non-parole period is limited to a consideration of the factors in s 32A(3) of the CLSA, or whether the court can have regard to the full range of considerations ordinarily relevant to the fixing of a non-parole period. The Court in R v A, D did not resolve that issue other than to emphasise that the identified special reasons must warrant or support the fixing of a non-parole period shorter than 20 years but did not otherwise resolve that issue.

10. The very way in which the question was framed by the Court in R v A, D, again, with respect, seems to assume that special reasons might exist in the abstract, divorced from a consideration of whether those reasons warrant a reduction in the mandatory minimum non-parole period.  If it is accepted that the question, properly framed, is whether there are special reasons which warrant a reduction in the non-parole period, the difficulty resolves itself. A sentencing court will proceed by considering the sentence it would impose by having regard to both subjective and objective factors against the 20 year minimum and, in particular, by applying a reduction to a notionally fixed non-parole period for an offender’s plea of guilty, in accordance with s 10C of the CLSA. If the non‑parole period so fixed is less than 20 years the court must consider whether the prescribed s 32A(3) of the CLSA factors support a finding of special reasons to give effect to that result.

11. In R v Frencken[19] Vanstone J, with whom David and Stanley JJ agreed, said:

    In addition to considering the qualifying matters themselves, the judge was entitled to take into account, on the question of whether a reduction was warranted, any subjective factors tending against such a reduction.  Because, although a reduction could only be justified having regard to one or more of the qualifying matters, the proof of, for example, relevant prior convictions, or the offence being committed in defiance of conditions of parole or a good behaviour bond, could offset the impact of a qualifying matter.  It is important to note that the notional non-parole period of four-fifths already comprehends the objective features of the crime.  It must be at the point of considering whether a qualifying matter warrants a reduction that other factors personal to the defendant which point the other way are brought to account.  I do not read the reasons of the plurality in R v A, D as saying anything to the contrary. 

    [19] R v Frencken [2012] SASCFC 71 at [18].

12. With respect, I understand that paragraph to be consistent with the approach I have outlined. The s 32A(3) “qualifying matters” must first be examined to determine whether they are strongly mitigatory but more is necessary before a court can be “satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period”.

13. I agree with [84]-[85] of the reasons of Stanley J concerning the modification of his obiter observation in R v Groth.[20]

    [20] [2013] SASCFC 108 at [43].

14. The Court in R v A, D approved the proposition that even after special reasons are found to exist the mandatory minimum non-parole period remains relevant and effects the extent of the reduction to be made approving observations made in R v Ironside,[21] R v Barnett,[22] R v Harkin,[23] and R v Jones.[24]I respectfully agree. 

    [21] (2009) 104 SASR 54 at [37]-[38], [47] per Doyle CJ, [181] per Kourakis J.

    [22] (2009) 198 A Crim R 251 at [50] per Vanstone J, [73]-[74], [92] per Kourakis J.

    [23] [2010] SASCFC 39 at [40] per Anderson and Kelly JJ.

    [24] (2010) 108 SASR 479 at [73], [80] per Anderson J, [187] per Peek J.

15. It is necessary to consider the practical operation of the special reasons discretion more closely. The first enlivening circumstance of a qualifying matter prescribed by s 32A(2) of the CLSA is an objective factor which affects the objective seriousness of an offence. That circumstance is not present in this case. The particular operation of s 32A(3) is best left to a case in which it directly arises.

16. I turn next to s 32A(3)(b) and (c) of the CLSA. Those subparagraphs reflect the importance Parliament attaches to reducing sentences for a demonstrated willingness to cooperate in the administration of justice. Reductions below the statutory minimum are not available for any other subjective factor. Since the decision of this Court in R v Shannon[25] reductions in sentence have been made for utilitarian purposes irrespective of the degree of contrition manifested by the guilty plea. Before the enactment of s 32(5)(ab) and s 32A of the CLSA, allowance was always made for a guilty plea, and other cooperation with the police, in accordance with common law sentencing principles in fixing the non-parole period for murder. The larger percentage reductions available pursuant to s 10C of the CLSA has given defendants an even greater incentive to assist in the administration of justice.

    [25] (1991) 57 SASR 14.

17. By permitting the court to reduce the minimum non-parole period below 20 years when there is special reason to do so because of a plea of guilty, and its surrounding circumstances, Parliament has:

    ·maintained the utilitarian advantages of sentence reduction for guilty pleas;

    ·ameliorated the harshness of the operation of a statutory minimum non‑parole period on offenders who are genuinely contrite; and

    ·allowed greater scope to fix a non-parole period which proportionately differentiates between offenders who have pleaded guilty and those who have not.

18. Plainly enough Parliament must have contemplated that some defendants charged with murder would plead guilty.  Accordingly special reasons to reduce the statutory minimum will not be made out by the mere making of a guilty plea.  It is a necessary condition for the reduction of a non-parole period below the statutory minimum, that the statutory minimum prevents the Court from giving full effect to the reduction it would otherwise have made on account of the offender’s plea of guilty.  However, the inability to give effect to that reduction will only amount to a special reason to depart from the statutory minimum if the failure to do so would result in a sentence so manifestly disproportionate to all of the circumstances of the case that the case should be treated as an exception to the rule.

19. The disproportion to which I refer is largely to be measured by the difference between the minimum non-parole period and the non-parole period which would be fixed in accordance with s 32A and s 10C of the CLSA if the benchmark of 20 years were not also the minimum non-parole period.

20. Even though the primary indication of injustice and disproportion is the extent of the reduction which is denied by the application of the statutory minimum, it will also be necessary to consider:

    ·the seriousness of the offence;

    ·the degree of contrition;

    ·the reasons for and circumstances surrounding the entry of the guilty plea.

21. If those qualitative factors operate adversely to a defendant the primary quantitative measure of disproportion may not constitute special reason to reduce the non-parole period. I acknowledge that those factors must also be considered in determining the extent of the reduction in accordance with s 10C of the CLSA and, in particular, s 10C(4) of the CLSA. Care must be taken not to double count them. In determining the extent of the reduction pursuant to s 10C of the CLSA, the seriousness of the offence of murder, and the legislative expectation of the application of the minimum non-parole period, will operate as limiting factors.

22. The ultimate question in the exercise of the discretion is whether:

    ·the quantitative difference between the minimum non-parole period and the non-parole period which would have been fixed if a period of 20 years was a benchmark only; and

    ·the qualitative evaluation of the seriousness of the offence and the circumstances of the guilty plea,

    require that the case be treated as an exception to the rule.

    Conclusion

23. The Judge reduced the notional non-parole period selected as a starting point by the maximum, indeed a little more than the maximum, allowed for the respondent’s guilty plea by s 10C of the CLSA. The Judge did not restrict that reduction by reason of the seriousness of the offence and the statutorily imposed minimum non-parole period even though there were strong reasons to allow less than the maximum reduction in this case. I refer in particular to the respondent’s less than heartfelt contrition and the horror of the offence and its aftermath. The Judge erred in failing to straiten the statutory reduction on account of those considerations.

24. Nonetheless even a less than full reduction for the respondent’s guilty plea, applied to the 22 year starting point properly selected by the Judge, would still result in a non-parole period substantially less than the 20 year benchmark if it were not also the statutory minimum.  To deny the respondent that reduction below the statutory minimum on account of his guilty plea would be disproportionately harsh in all of the circumstances of his case.

25. Accordingly, I would hold that there are special reasons to make an exception to the statutory minimum in the respondent’s case.  An application of the principles set out in [54]-[55] above could be expected to yield a non-parole period of between 16 and 18 years.

26. The proper construction, and reading together of, ss 10C, 32(5)(ab) and 32A of the CLSA involves a complex question of law. Appellate guidance on the proper approach to fixing a non-parole period for murder against those statutory provisions will promote coherence and transparency. Sentencing for offences of murder is a matter of great public importance. Moreover as has been seen it was an error of law in this case to reduce the non-parole period by the full amount of 30 per cent without moderating that reduction by reference to the statutory minimum non-parole period. There are, therefore, public interest reasons to grant permission to appeal.

27. Nonetheless I would refuse permission to appeal.  The reasons for decision of this Court on the application for permission to appeal give the required guidance on the application of the statutory sentencing regime.  It is well accepted that questions of law can be addressed by the Court without actually making final orders substituting a different sentence.  A 15 year non-parole period is ‘a substantial measure of punishment by full-time imprisonment’[26]   It is somewhat harsh to subject the respondent, who is already subject to a long term of imprisonment, to an upward review of his sentence because the Judge erred in the application of what is a complex statutory regime to the circumstances of his case. 

    [26] Green v The Queen (2011) 244 CLR 462, 466 [4] (French CJ, Crennan and Keifel JJ).

28. Moreover, the Director’s primary contention that there were no ‘special reasons’ for fixing a non-parole period of less than 20 years in this case has been rejected and the non-parole period fixed by the Judge does not fall far below the appropriate range demanded by a correct application of the now identified sentencing principles.

29. In the special circumstances of this application, the most appropriate disposition is to refuse permission to appeal.

30. PEEK J:         I agree with the orders proposed by the Chief Justice and with his reasons.

31. STANLEY J:       In this matter I agree with the reasons of the Chief Justice and with the orders he proposes.

32. I wish to say something briefly about my reasons in R v Groth.[27]  Groth was an appeal against sentence. One of the grounds of appeal was that the sentencing judge erred in failing to find special reasons existed pursuant to s 32A. In dismissing the appeal I held that there was no error in the approach by the sentencing judge that special reasons did not exist for fixing a non-parole period shorter than the prescribed minimum. Having done so I made the following obiter remarks:[28]

    It is important to bear in mind that even if the sentencing judge had found that special reasons existed in this case, that did not mean that she was obliged to fix a non‑parole period shorter than the mandatory period. The existence of “special reasons” merely enlivens the Court’s power to consider whether a non‑parole period shorter than the mandatory period should be fixed. That consideration is informed by the terms of s 32A(1) that provides that the mandatory minimum represented the non‑parole period for an offence at the lower end of the range of objective seriousness for such an offence.

    [27] [2013] SASCFC 108.

    [28] [2013] SASCFC 108 at [43].

33. My remarks were informed by particular observations made by the plurality in R v A, D[29] set out in the reasons of the Chief Justice.[30] The reasons of the Chief Justice demonstrate that the issue for the sentencing court applying s 32A(2)(b) is whether it is satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period. If the court is so satisfied then the court must fix such shorter non-parole period as it thinks fit. That involves a two-stage process as the Chief Justice’s analysis discloses. However, contrary to what I said in Groth, satisfaction that special reasons exist does not merely enliven the court’s power to consider whether a non-parole period shorter than the mandatory minimum should be fixed.  Satisfaction that special reasons exist requires the court to fix a non-parole period shorter than the statutory minimum.   The only question is how much shorter.  That requires separate consideration albeit a consideration informed by the matters that led the court to be satisfied that special reasons exist.  To that extent it is necessary to modify my obiter observation in Groth. 

    [29] [2011] SASCFC 5, (2011) 109 SASR 197.

    [30] [41].

1. LOVELL J:         I agree with the order proposed by the Chief Justice and with his reasons. 

2. DOYLE J:            I agree with the reasons of the Chief Justice, and with the order he has proposed.