R v Hansen - [2011] SASCFC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HANSEN
[2011] SASCFC 10
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
9 March 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE - PARTICULAR CASES
Appeal against sentence - appellant charged with murder but convicted for manslaughter - sentenced to imprisonment for 12 years with non-parole period of 10 years - prior to trial appellant offered to plead guilty to manslaughter on the basis of self-defence that was not reasonably proportionate to the perceived threat - sentencing judge declined to set non-parole period of less than four-fifths of head sentence - whether judge erred in finding that this was a serious case of manslaughter - whether, having found that a criterion under s 32A of Criminal Law (Sentencing) Act 1988 (SA) was met, judge erred in refusing to find that special reasons existed to lower mandatory non-parole period - whether sentencing judge erred in failing to take account, when fixing the head sentence, of the pre-trial offer to plead.
Held: Vanstone and Sulan JJ agreeing, White J dissenting - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 32A, s 10(1)(g); Criminal Law Consolidation Act 1935 (SA) s 15(1), referred to.
R v Kirkman (1987) 44 SASR 591; Cameron v The Queen (2002) 209 CLR 339; R v Place (2002) 81 SASR 395; R v Oinonen [1999] NSWCCA 310; R v Pennisi [2001] NSWCCA 326; R v Cardoso (2003) 137 A Crim R 535; R v Forbes [2004] NSWSC 241; R v Glanville [2010] NSWSC 364; R v Marshall (1995) 1 Qd R 673; R v Wiggins [2003] QCA 367; R v Bartlett [1996] 2 VR 687; R v Parr [2009] VSC 468; R v Jones [2010] SASCFC 58, considered.

R v HANSEN
[2011] SASCFC 10
Court of Criminal Appeal: Sulan, Vanstone and White JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of Vanstone J.
VANSTONE J: After a trial by jury, the appellant was found not guilty of murder but guilty of manslaughter. He stabbed a man in the neck four times late at night in Hindley Street, Adelaide. There was a history of bad feeling and violence between them. He was sentenced to 12 years imprisonment with a 10 year non-parole period. He now appeals against the sentence arguing that the judge imposed a sentence which was too high and also that he erred in failing to reduce the non-parole period below the mandatory minimum provided in the Criminal Law (Sentencing) Act 1988.
Background
Both the appellant and the victim come from Port Pirie. In July 2004 they were involved in a confrontation there. The victim stabbed the appellant in the neck, claiming that he was a police informer. The victim was convicted and sentenced for that offence.
The appellant said in evidence that he had encountered the victim on Hindley Street six months prior to the fatal incident and that the victim then behaved aggressively towards him.
On the night of the incident the appellant again happened upon the victim on Hindley Street. The appellant was alone and the victim was with a group of friends. The appellant claimed that the victim behaved aggressively towards him, taunting him and threatening him with violence. The appellant said that the group of men advanced upon him, forcing him to back into traffic on the street and pursuing him as he ran away from them. That pursuit ended when the appellant neared the position of two police officers. The appellant said that, being scared for his safety, he hid in a nearby convenience store. There, he stole a pair of scissors. He saw the victim and his group walk past the shop without noticing him. The appellant waited for about ten minutes before deciding to go in the same direction as the victim. The appellant soon came across the group. He approached and stabbed the victim four times in the neck with the scissors in quick succession from behind. He claimed to have been acting in self-defence. The appellant then turned and ran. He was chased by the victim and his group until the victim collapsed and died on the street.
Arguments on appeal
Senior Counsel for the appellant, Mr W P Boucaut, argued that, in observing that the crime was “in a most serious category of manslaughter”, the judge over emphasised its gravity. He argued that it was not a crime in the highest group of manslaughter offences because the killing followed an episode when the appellant had genuinely feared for his life. Mr Boucaut pointed to a letter written to the Director of Public Prosecutions on the appellant’s behalf after his committal for trial and well before the trial was set down, in which he offered to plead guilty to manslaughter. Mr Boucaut said this was to be equated with a plea of guilty for the purpose of attracting a reduction to the sentence. Senior counsel further submitted that having found that the offer to plead guilty amounted to what might be called a “qualifying factor” for the purposes of s 32A(3) of the Sentencing Act, the judge should not have declined to reduce the non-parole period below the mandatory minimum proportion of four-fifths of the head sentence. In fact, the non-parole period imposed constituted about 83 per cent of the head sentence.
Analysis
In my view, while 12 years for manslaughter is a substantial sentence, it is not at the highest end of the range of sentences for that offence. As has often been observed, there is no tariff for manslaughter. The basis for findings of guilt of manslaughter and the circumstances of such crimes differ widely. There is much room for the exercise of discretion in imposing a sentence for this offence . That must be all the more so where a sentence is imposed following a trial, in which all aspects of the crime have been explored in evidence.
Mr Boucaut suggested that significant credit should have been afforded the appellant on account of his offer, at an early stage, to plead guilty to manslaughter on the very basis upon which he was later found guilty. There was no dispute by the prosecution that a formal offer was made by letter at an early stage. In my view there is no rule of practice requiring that credit be given for such an offer in these circumstances. Had the appellant been able to point to a plea of guilty following the preliminary examination, or on an arraignment day, or at a subsequent hearing, then there is no doubt that, all things being equal, he would have been able to claim credit for that plea.
However, here there was a complicating factor. The appellant went to trial claiming that, at the time he struck the deceased, he was not adverting to the fact that he was holding the scissors. In other words, his defence was that he thought he was merely punching the deceased and that he was doing so in genuine self-defence. Had that account been found by the jury to be reasonably possible, then he would have secured a complete acquittal. The departure from the terms of the earlier offer tends to suggest that the offer was made as a matter of tactics, rather than being a demonstration of contrition and remorse.
Particularly in circumstances where the appellant’s evidence at trial departs from the basis for the plea put in the letter of offer, I see no reason why a sentencing judge is obliged to give credit. Indeed, I would tend to equate the weight which might be attached to the offer to plead guilty here to that which might be afforded a defendant who is frank in interview with police about his involvement in the relevant event, but yet goes on to defend the charge. I do not consider that the judge was obliged to give any credit for the offer, or to mention it in his sentencing remarks in the context of arriving at a head sentence or non-parole period.
In relation to the specific submission that, having found that the offer to plead guilty answered the criterion in s 32A(3)(c), the judge erred in failing to find special reasons for reducing the non-parole period, I would make the following observations. The relevant parts of the provision are as follows:
32A(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 co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
As far as I am aware, this Court has not authoritatively stated whether an offer to plead guilty can qualify under s 32A(3)(c) as co-operation in the investigation or prosecution of the offence. Inasmuch as subsection (3)(b) deals with pleas of guilty, it could be argued that, in drafting and enacting subsection 3(c), Parliament had in mind matters unrelated to pleas of guilty. In any event, as seen, here the judge was prepared to treat the offer of a plea of guilty as relevant co-operation in the prosecution of the crime. Because I agree with the judge that, notwithstanding that finding, there were not special reasons to fix a non-parole period shorter than the prescribed period, it is not necessary to further discuss the ambit of subsection (3)(c).
Having found one or more of the matters set out in subsection (3), a judge goes on to consider whether special reasons exist for fixing a non-parole period shorter that the prescribed period. That decision is very much a matter of discretion. In support of the argument that there were special reasons, Mr Boucaut argued that the threatening and aggressive behaviour of the victim prior to the final confrontation between them should have been considered, together with the offer to plead guilty and should have led to a state of satisfaction that special reasons existed.
In my view these considerations were very much for the sentencing judge. I am unable to say that he erred in the decision he made. On the contrary, I would have reached the same position. Relevant to that decision was the judge’s finding that this was a serious crime of manslaughter.
As I mentioned, the judge selected a non-parole period which was slightly more than the mandatory minimum proportion of four-fifths. He did not give any specific reason for so doing. It seems to me that all the judge did was to use round figures which approximated the statutory proportion. I think he was quite entitled to do so. The Parliament does not, presumably, wish judges to apply the statutory minimum in a mathematical way, so as to arrive at periods of years, months and days. That has never been the practice of sentencing judges and I do not consider that the introduction of a statutory minimum period changes that fact.
Conclusion
I am quite unable to say that the sentence imposed is manifestly excessive.
I would dismiss the appeal.
WHITE J. The circumstances giving rise to this appeal are set out in the reasons of Vanstone J.
The appellant argued four matters:
(1)The sentencing Judge had erred when fixing the head sentence of 12 years by failing to have regard to the mitigatory effect of the appellant’s offer on 14 September 2009 to plead guilty to manslaughter on the basis of excessive self-defence;
(2)The head sentence was in any event manifestly excessive having regard to the circumstances of the offence and the appellant’s personal circumstances;
(3)The sentencing Judge had erred in fixing the non-parole period by failing to find that, in addition to the special reason arising under s 32A(3)(c) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), special reason also arose under s 32A(3)(a) because the appellant’s conduct had been substantially mitigated by the victims conduct.
(4)The Judge had in any event erred by failing to fix a non-parole period which was less than the mandatory minimum of four-fifths of the head sentence.
The Offer to Plead Guilty and the Head Sentence
The offence was committed on 28 February 2009. The appellant was arrested and remanded in custody on the same day. Just on seven months later and before he was committed for trial on the charge of murder, the appellant’s solicitors wrote to the Director of Public Prosecutions conveying his offer to plead guilty to the offence of manslaughter on the basis of excessive self-defence. The Director rejected that offer and the appellant was committed for trial in this Court.
The letter containing the appellant’s offer was not placed before the Court but these matters were common ground.
Apart from the possibility that the jury verdict is a merciful verdict of the kind to which King CJ referred in R v Kirkman,[1] it is explicable only on the basis that the jury was satisfied that the prosecution had not excluded as a reasonable possibility that the appellant genuinely believed his stabbing of the victim to be necessary and reasonable for his own defence. The jury must also have been satisfied that the prosecution had established that the appellant’s conduct was not, in the circumstances he genuinely believed them to be, reasonably proportionate to the threat which he genuinely believed to exist: Criminal Law Consolidation Act 1935 s 15(1). Put more shortly, the verdict is explicable on the basis that while the jury considered that the appellant may have had a defensive purpose, his response was excessive. This was the same basis upon which the appellant had offered to plead guilty to manslaughter on 14 September 2009.
[1] (1987) 44 SASR 591 at 593
In his sentencing remarks, the Judge did not refer to at all to the potential mitigatory effect in relation to the head sentence of the appellant’s offer to plead. The Judge considered the offer only in relation to the non-parole period and, in particular, in relation to s 32A of the Sentencing Act. The Judge’s consideration of the offer to plead in this way reflected the submissions on sentencing. Those submissions had substantially, but not wholly, been directed to the use which could be made of the offer in relation to s 32A.
For the reasons which follow I consider that the Judge should have taken account of the offer when determining the head sentence.
The High Court discussed the rationale for the mitigatory effect of a plea of guilty in the context of the Sentencing Act 1995 (WA) in Cameron v The Queen.[2]The majority (Gaudron, Gummow and Callinan JJ) said:
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.[3]
[2] [2002] HCA 6; (2002) 209 CLR 339.
[3] Ibid at [14]; 343.
In this State, s 10(1)(g) of the Sentencing Act requires a court to have regard to a plea of guilty. Such a plea is generally regarded as mitigatory because it may, subjectively, indicate the defendant’s contrition and because, even in the absence of contrition, the plea has a utilitarian value in an objective way, that is, the benefit to the administration of justice and the public interest resulting from a plea instead of a trial: see R v Place.[4] Although not expressing a final view, the Court in Place considered that it was these considerations, rather than the willingness of the defendant to facilitate the course of justice, which provided the appropriate rationale for the mitigatory effect of a plea of guilty.
[4] [2002] SASC 101 at [78]; (2002) 81 SASR 395 at 424.
The significance of an unaccepted offer to plead guilty to the offence of which the accused is ultimately found guilty has been considered in a number of authorities. Generally, those authorities indicate that an unaccepted offer of this kind should be regarded as mitigatory. Subject to any matters which may arise from the timing, circumstances or expression of the offer, and the accused’s conduct in the trial, an unaccepted offer to plead guilty will usually have a mitigatory effect similar to the entry of a plea.
In R v Oinonen[5] the appellant had been charged with murder and the prosecution had rejected his offer to plead guilty to manslaughter. The jury found him guilty of manslaughter. Grove J (with whom Spigelman CJ and Sully J agreed) said:
It is true that technically the applicant did not plead guilty to manslaughter and he therefore does not fall within the precise terms of s 439 of the Crimes Act. There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted.
The offer of that plea of guilty or, in usual circumstances, the actual plea of guilty, is of benefit to the person charged broadly in two ways: It is taken as an indication of remorse and contrition for the offence committed and, second, there is what is described as the utilitarian value of the plea; this includes the relief of the State from having to call witnesses and, indeed, the reliefs to the various witnesses of the burden of having to give evidence and potentially being cross-examined.[6]
As the appellant in Oinonen had not been given the benefit of his offer, the appeal was allowed and the appellant re-sentenced.
[5] [1999] NSWCCA 310.
[6] Ibid at [15]-[16].
R v Pennisi[7] raised the same issue. The accused, who had been charged with murder, offered before the committal to plead guilty to manslaughter. That offer was rejected. On the trial of the charge of murder, the accused was acquitted but convicted of manslaughter. The sentencing judge treated the offer to plead guilty to manslaughter as a mitigatory factor. The Court of Criminal Appeal in New South Wales referred to the utilitarian value of a plea of guilty and said:
As events turned out there was no utilitarian value in this case as the plea was not accepted. That does not reflect at all on the applicant and his offers to plead guilty to manslaughter were appropriately treated by her Honour upon the same basis as if they had been accepted.[8]
[7] [2001] NSWCCA 326.
[8] Ibid at [27].

R v Cardoso[9] was another case in which the prosecution had rejected the appellant’s pre-trial offer to plead guilty to manslaughter and the trial proceeded on the charge of murder. The jury acquitted the appellant of that charge but found him guilty of manslaughter. The sentencing judge refused any credit to the appellant on account of his pre-trial offer. The Court of Criminal Appeal, by majority, held that the sentencing judge had been in error. The Court considered that the appellant should have been granted some allowance though at the trial on the charge of murder he had raised an issue which could have led to an outright acquittal. Hidden J, with whom Greg James J agreed, said:
His Honour expressly took into account the applicant’s remorse but he made no allowance for his offer to plead guilty to manslaughter. Here, in my respectful view, his Honour fell into error. The applicant had offered to plead guilty to a lesser charge which could fairly be justified on the available evidence and which, in the event, the jury found to be the appropriate measure of his culpability. The Crown chose not to accept that offer, a matter which was beyond the applicant’s control. If the offer had been accepted, the same result would have been achieved without the necessity of a trial.
It is not to the point that, that offer having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at the trial which could have led to his outright acquittal. … A plea of guilty at that stage would have not have been accepted by the Crown and the trial would have proceeded in any event.
… If the submission of the Crown prosecutor in this Court were upheld, the measure of leniency afforded to an offender such as the applicant, prepared to plead guilty to a lesser charge fairly available on the evidence, would depend upon the Crown’s attitude. This would be unacceptable.[10]
[9] [2003] NSWCCA 15; (2003) 137 A Crim R 535.
[10] Ibid at [19]-[21]; 540. See also R v Forbes [2004] NSWSC 241 at [94]; R v Glanville [2010] NSWSC 364 at [100].
A similar view was taken in Queensland in the earlier decision of R v Marshall.[11] Each of Fitzgerald P and Pincus JA considered that the appellant’s offer to plead guilty to the only offence of which he was convicted was a relevant matter to be brought into account in the exercise of the sentencing discretion. Pincus JA considered that the reasonableness or otherwise of the Crown’s decision to reject the offer was immaterial saying:
I find it difficult to see why the applicant’s position should be worse than if the Crown had charged him with, and he had pleaded guilty to, [the offence of which he was convicted].[12]
[11] (1995) 1 Qd R 673.
[12] Ibid at 675. See also R v Wiggins [2003] QCA 367.
In Victoria, the Court of Appeal has held that a defendant should be given credit for an unaccepted offer to plead to a lesser charge which matches the verdict at trial. In R v Bartlett[13] the accused was convicted of indecent assault but had been charged with several counts of rape and a count of false imprisonment and indecent assault. Winneke P (with whom Charles JA and Southwell AJA agreed) recognised the mitigatory effect of the accused’s offer to plead guilty to the only count of which he was found guilty, saying:
His Honour was informed that, following his rejection of the application to exclude the record of interview, the applicant proposed to the Crown that he would be prepared to plead guilty to the indecent assault charge. The Crown rejected the offer. The fact that the applicant had been prepared to plead guilty to what was the only count of sexual assault of which he was found guilty was a factor which should have been taken into account in his favour in the sentencing process. On this application the director agreed that this was so. In fact, as is clear from the learned judge’s sentencing remarks, the applicant was given no credit for the offer …[14]
[13] [1996] 2 VR 687.
[14] Ibid at 698-9. See also R v Parr [2009] VSC 468 at [31].
Apart from one reference, I have not been able to locate in the decisions of this Court any discussion of the mitigatory effect of an unaccepted offer to plead guilty to the lesser offence of which the accused is ultimately found guilty. However, in R v Jones, Peek J said:
[I]t is worth noting that general sentencing principles do require an allowance to be made for just such an attempt to plead to a lesser charge in circumstances where the accused is subsequently found guilty of only that lesser charge.[15]
[15] R v Jones [2010] SASCFC 58 at [204].
The authorities reviewed above indicate, in my opinion, that proper sentencing principle does require account to be taken in a mitigatory way of an unaccepted offer to plead to a lesser offence which matches the verdict at the trial. The application of that principle is subject to the existence of other relevant factors, including the timing of the offer (and in particular its proximity to the trial), any terms or conditions attached to the offer, the circumstances in which the offer is made, and the conduct of the accused in the trial.
The making of the offer may be a reflection of the accused’s remorse or contrition and, in any event, serves utilitarian purposes. The fact that the offer is not given formal expression on the accused’s arraignment does not preclude some allowance in the sentencing being made (although the fact that the accused indicates in open court his willingness to plead to the lesser offence may be very relevant to the extent of the allowance). The reasonableness or unreasonableness of the prosecution’s rejection of the offer is not a material consideration. The availability of a reduction for a guilty plea should not depend upon the attitude taken by the prosecution to the offer, something over which the accused has no control.
The fact that, following a rejection of an offer, an accused presents at trial a defence which is inconsistent with the offer, will be a relevant consideration. It may reduce or eliminate the significance of the offer as an expression of contrition or remorse. However, ordinarily it should not mean that the offer ceases to be relevant because, at the least, it would have had a utilitarian value had it been accepted.[16]
[16] Cf R v Cardoso [2003] NSWCCA 15 at [20]; (2003) 137 A Crim R 535 at 540
It follows, in my opinion, that the Judge erred in his fixing of the head sentence in the present case by not considering, and not giving effect in a mitigatory way to, the appellant’s offer to plead to manslaughter made on 14 September 2009. That error indicates that the sentencing discretion has miscarried and that this Court should re-sentence. It also means that the remaining issues identified at the commencement of these reasons need be considered only to the extent to which they bear on re-sentence.
I add that any offer to plead to a lesser offence which an accused wishes to have taken into account if convicted of that offence should be communicated in clear terms and preferably in writing. A sentencing court should not have to resolve disputes about whether an offer was made or the terms of any offer. In particular a sentencing court should not have to determine disputes between counsel as to the content or effect of their oral discussions.
I emphasise also that these reasons are directed to offers to plead to a lesser offence. Something less than a formal offer, such as a “sounding out” or an “invitation to treat” should not attract the allowance referred to in the authorities.
Re-sentence and the Head Sentence
The appellant was 27 years of age at the time of his offence. He left school at age 18 having completed Year 11. Since then he has had a steady work history.
The sentencing Judge received a number of character references. They indicate uniformly that the appellant is regarded as a person of good character and that he comes from a supportive and close family. He has a number of supports in the community. The appellant does have a number of prior convictions, but many of those are for traffic type offences.
The sentencing Judge regarded the appellant’s offence as a most serious case of manslaughter. I agree. Whatever fears the appellant had about his own safety could have been resolved by the simple expedient of him walking in a westerly direction on Hindley Street, that is, in the opposite direction from that taken by the victim and his group. Instead the appellant altered his appearance by changing his shirt and putting on a cap. After stealing a pair of scissors, he followed the victim’s group with the inevitable result that he came into close proximity to the victim. Even then, the appellant could have avoided any interaction with the victim. Instead, it seems that he deliberately took a course which brought him into contact with the victim at a time when there was nothing to indicate that some form of pre-emptive action on his part was required.
The appellant stabbed the victim with the scissors four times. His conduct was entirely inappropriate, and resulted in an unnecessary loss of life.
There is no tariff for manslaughter. In my opinion, the starting point of 12 years selected by the Judge was appropriate in the particular circumstances of this case.
That starting point should be reduced on account of the appellant’s early offer to plead guilty to manslaughter. The defence raised by the appellant at trial diminishes the significance which can be attached to his offer to plead as an expression of remorse or contrition. The appellant claimed at trial that he did not know that he had the scissors in his hand at the time he struck the victim. By this means the appellant sought to obtain a complete acquittal rather than accepting responsibility for his conduct. His claim was plainly implausible and must have been rejected by the jury.
However, if the appellant’s offer had been accepted it would have served the utilitarian purposes referred to in the authorities regarding a plea of guilty. I note again that the offer was made at a very early stage and before the appellant was committed for trial.
Giving the appellant credit for his offer, I would impose a head sentence of imprisonment for 10 years and six months.
Re-sentence and the Non-Parole Period
Because the appellant’s offence was a serious offence against the person as defined in s 32(10)(d) of the Sentencing Act, the mandatory minimum non‑parole period of four-fifths of the head sentence applied (s 32(5)(ba)). That mandatory minimum represents the non‑parole period for an offence at the lower end of the range of objective seriousness for the offence of manslaughter (s 32A(1)). The appellant’s offence cannot be regarded as an offence of that character. That suggests that a non‑parole period of more than four-fifths of the head sentence should be fixed.
The appellant repeated to this Court the submissions made to the sentencing Judge concerning the application of s 32A of the Sentencing Act. (Section 32A is set out in full in the reasons of Vanstone J). He submitted that each of the matters specified in s 32A(3)(a) and (c) existed in his case.
Section 32A(3)(a) provides that special reasons may exist for fixing a non‑parole period shorter than the mandatory minimum if the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the offender’s conduct. In the present case, it was submitted that the victim’s conduct some five years previously when he assaulted the appellant, his conduct some six months previously when he behaved aggressively towards the appellant, and his conduct earlier on the night of the incident, was conduct of a kind which substantially mitigated the offender’s conduct. As I understood the argument, it was to the effect that it was the victim’s conduct which had caused the appellant to have a genuine belief that his stabbing of the victim was necessary and reasonable for a defensive purpose. That being so, it was said that the appellant’s conduct was mitigated by the victim’s conduct.
For my part, I doubt that, in the unusual circumstances of this case, the victim’s conduct could be regarded as the kind of mitigatory conduct to which s 32A(3)(a) refers. Even if the victim’s prior conduct did produce the belief to which s 15(1)(a) of the CLCA refers, it is doubtful that it could mitigate the appellant’s wholly inappropriate and unnecessary response. The appellant’s conduct occurred after an opportunity for reflection and seemed to involve an element of premeditation. It was entirely unnecessary and disproportionate to the circumstances faced by the appellant. After separating from the appellant, the victim did nothing at all to indicate that any conduct of the kind in which the appellant engaged was necessary at all. Alternatively, it could be said that the conviction for manslaughter on the basis of excessive self‑defence, rather than a conviction of murder, necessarily contained within it some “mitigation” on account of the victim’s conduct.
The appellant also sought to invoke s 32A(3)(c), contending that his offer to plead guilty on 14 September 2009 amounted to cooperation in the prosecution of his offence. The sentencing Judge accepted that the unaccepted offer to plead guilty to manslaughter was a relevant form of cooperation but nevertheless thought it inappropriate to fix a non‑parole period less than the mandatory minimum.
In R v Jones[17] both David J and Peek J accepted that an unaccepted offer by an accused person to plead guilty to a lesser offence which matches the ultimate verdict could amount to cooperation for the purposes of s 32A(3)(c).[18] Anderson J did not decide the issue.[19]
[17] [2010] SASCFC 58.
[18] Ibid at [114] and [203].
[19] Ibid at [83]
In the present case I consider it unnecessary to decide whether the victim’s conduct did mitigate the appellant’s conduct or whether the making of the unaccepted offer to plead to the lesser charge amounted to a form of cooperation contemplated by s 32A(3)(c). That is because, even if those matters were resolved in the appellant’s favour, it remains to the Court to determine whether the non‑parole period should be fixed at less than the mandatory minimum.
On the assumption favourable to the appellant that the occasion for the exercise of that discretionary judgment does arise in this case, I would reach the same conclusion as did the sentencing Judge that a non-parole period higher than the mandatory minimum is appropriate. In part that is because of the objective seriousness of the appellant’s offending. As previously noted, the mandatory minimum of four-fifths is applicable to those cases at the lower end of the scale of seriousness, determined objectively. The present case cannot be characterised in that way. That does not preclude a lower non-parole period being fixed,[20] but it is a very relevant consideration.
[20] R v A, D [2011] SASCFC 5 at [46].
In addition, account has been taken of the unaccepted offer to plead guilty in the fixation of the head sentence. That has a consequential effect on the non‑parole period which is fixed by reference to it. That may not preclude the offer also being taken into account for the purposes of s 32A(3)(c), but it is relevant to the question of whether any reduction should be made.
Accordingly, I would fix a non‑parole period of eight years and eight months.
Conclusion
For the reasons outlined above, I would allow the appeal. I would set aside the sentence imposed by the Judge. I would impose in its place a sentence of imprisonment for 10 years and six months and fix a non‑parole period of eight years and eight months. Both the head sentence and the non‑parole period should be taken to have commenced on 28 February 2009, being the date upon which the appellant was taken into custody