Legal Research
Cases
R v Hansen

R v Hansen

Case [2011] SASCFC 10 9 March 2011

Statutory Construction

Criminal Law

Statutory Interpretation

Type to search within this case.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hansen

Details

AGLC: R v Hansen [2011] SASCFC 10
Case: [2011] SASCFC 10
Decision Date: 9 March 2011

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Sulan, Vanstone, and White JJ, heard an appeal against a sentence imposed on the appellant. The appellant had been charged with murder but was ultimately convicted of manslaughter. The sentencing judge imposed a head sentence of 12 years imprisonment with a non-parole period of 10 years. The appeal concerned the propriety of this sentence, particularly the non-parole period.

The central legal issues before the Court were whether the sentencing judge erred in several respects. Firstly, it was argued that the judge failed to adequately consider the mitigating effect of the appellant's pre-trial offer to plead guilty to manslaughter on the grounds of excessive self-defence when fixing the head sentence. Secondly, the appellant contended that the head sentence was manifestly excessive given the circumstances of the offence and his personal situation. Thirdly, the appeal challenged the judge's refusal to find special reasons, beyond those already identified under s 32A(3)(c) of the *Criminal Law (Sentencing) Act 1988* (SA), to reduce the mandatory non-parole period, specifically arguing that the victim's conduct constituted a special reason under s 32A(3)(a). Finally, the appellant argued that the judge erred by failing to set a non-parole period of less than the statutory minimum of four-fifths of the head sentence.

The Court addressed the appellant's argument regarding the non-parole period, noting that the sentencing judge had set a period slightly exceeding the mandatory four-fifths proportion without providing specific reasons. The Court found that the judge was entitled to use rounded figures that approximated the statutory proportion, as there was no expectation for judges to apply the minimum mathematically to arrive at precise periods of time. The Court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal. The Court also noted that the jury's verdict of manslaughter on the basis of excessive self-defence was consistent with the appellant's earlier offer to plead guilty on the same grounds.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WHITE J (dissent)

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. 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

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

Actions

Citations

R v Hansen [2011] SASCFC 10

Most Recent Citation

R v McFarlane [2022] SADC 155

Cases Citing This Decision

Hutchins v The King [2025] SASCA 111
Citation 1 (Para 7)

…Court’s intervention is necessary to prevent a possible injustice.[18] [17] R v Gbojeuh (2009) 103 SASR 545 at [36]–[37] (Kourakis J); R v Hansen (2002) 84 SASR 54 at [16] (Perry J); R v Neocleous (2017) 270 A Crim R 262 at [147]–[148] (Doyle J with whom Peek J agreed). [18] Mackenzie v The Queen (1996) 190 CLR 348…
R v McFarlane [2022] SADC 155
Citation 2 (Para 15)

…ss as to whether harm was caused to the officer. Defence Opening Statement [5] [5] R v Nona [1997] 2 Qd R 436, R v Oulds [2014] QCA 223, R v Hansen (2002) 84 SASR 54.…
Urlich v The Queen [2019] ACTCA 30
Citation 3

…loginya [2009] NSWSC 1435 R v Governor of Her Majesty’s Gaol at Pentridge; Ex parte Cusmano [1966] VR 583 R v Graham [2000] NSWSC 1033 R v Hansen [2011] SASCFC 10; 206 A Crim R 54 R v Hookey [2004] NSWCCA 223 R v Huat Phay [2009] ACTSC 130 R v MCY [2018] QCA 275 R v Navin [2016] ACTSC 109 R v Patel (No 3) [2018] NS…
R v Yavuz (No. 1) [2017] NSWSC 1645
Citation 4 (Para 14)

…e Crown in that case, his Honour said that since writing that part of his judgment dealing with s 159 he had become aware of a decision of R v Hansen (2002) 84 SASR 54; [2002] 84 SASR 54; 134 A Crim R 227 in the Court of Criminal Appeal of South Australia. His Honour then referred to the address by two defence couns…
R v Li [2016] SASCFC 152
Citation 5 (Para 18)

…ings of fact for the purpose of fixing sentence? [9] Markarian v The Queen [2005] HCA 25 at [30] – [31], (2005) 228 CLR 357 at 372. [10] R v Hansen [2011] SASCFC 10 at [7], (2011) 206 A Crim R 54 at 56. [11] (1987) 49 SASR 248 per King CJ at 248. See also R v Goulding [2007] SASC 60 per Gray J at [18].…
R v Wheeler [2015] SASCFC 83
Citation 6 (Para 9)

…e offending have been explored in evidence.[14] [13] Markarian v The Queen [2005] HCA 25 at [30] – [31], (2005) 228 CLR 357 at 372. [14] R v Hansen [2011] SASCFC 10 at [7], (2011) 206 A Crim R 54 at 56.…
The State of Western Australia v Auckram [2013] WASCA 256
Citation 7

…stern Australia [2012] WASCA 235 R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 R v Franklin [2012] SASCFC 109; (2012) 114 SASR 206 R v Hansen [2011] SASCFC 10; (2011) 206 A Crim R 54 R v Jones [2010] SASFC 58; (2010) 108 SASR 479 R v Lawrence (1980) 32 ALR 72 R v Lyon [2006] QCA 146 R v Marshall [1994] QCA…
R v Franklin [2012] SASCFC 109
Citation 8 (Para 14)

…wed the authorities concerning this issue in my reasons in R v Hansen [17] and it is not necessary for present purposes to repeat that review. [17] [2011] SASCFC 10 at [27]-[33].…
R v Pratten (No 2) [2012] NSWSC 1665
Citation 9 (Para 25)

…of the Court of Criminal Appeal of the Supreme Court of South Australia, comprising Doyle CJ and Perry and Lander JJ, in R v Hansen [2002] SASC 208; (2002) 84 SASR 54. The majority judgment was delivered by Lander J, with whom Doyle CJ agreed. The case involved facts wholly unrelated to this one. It was about openi…
R v O'Connor [2012] SASCFC 15
Citation 10 (Para 18)

…will take effect on a date on or after the date of the order. The impact of s 340 of the CLCA was recently summarised by Gray J in R v Verrall [2011] SASCFC 10 at [21]-[22]. Gray J there referred to recent observations by French CJ, Crennan and Kiefel JJ in Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36. In th…
Scheving v Police [2011] SASC 128
Citation 11 (Para 25)

…ad been taken.[26] [25] (2011) 109 SASR 491. [26] Ibid 514-516. See R v Dolan (1992) 58 SASR 501, 506, R v K (1997) 68 SASR 405, 411, 415, R v Hansen (2002) 84 SASR 54, 71. The staleness of the charge and the circumstances of the appellant…
R v Perdikoyiannis [2011] SASCFC 82
Citation 12 (Para 25)

…ut prejudice” offer, a “sounding out” or an “invitation to treat” should not attract the allowance referred to in the authorities. [55] [2011] SASCFC 10 at [19]-[38].…
R v S, G [2011] SASCFC 48
Citation 13 (Para 20)

…59]I agree. I think the appellant would lose the advantage of the acquittals on counts one to five on any retrial. I would not order a re-trial. [54] (2002) 84 SASR 54. [55] Ibid 71…
R v S, DD [2010] SASCFC 80
Citation 14 (Para 22)

…nt on those counts and acquitting him on the others that the jury’s verdict can be explained by some innate sense of fairness and justice. [77] (2002) 84 SASR 54 at 71. [78] (2009) 103 SASR 545 at 554. [79] (2002) 84 SASR 54. [80] R v Hansen (2002) 84 SASR 54 at 71. [81] A reference to the judgment of King CJ in R v…
R v Cordell [2009] VSCA 128
Citation 15

…[13]See also R v Hansen (2002) 84 SASR 54 (CA), in which the appellant’s conviction on certain counts of unlawful sexual intercourse was held to be inconsistent with the jury’s rejection of the complainant’s evidence in relation to other counts on which the appellant and another person were acquitted; R v RCC (2002)…
R v JA [2008] VSCA 169
Citation 16 (Para 1)

…ifferent verdicts were explicable on the basis of different issues and different evidence referable to the different charges. [15]See also R v Hansen (2002) 84 SASR 54 (CA), in which the appellant’s conviction on certain counts of unlawful sexual intercourse was held to be inconsistent with the jury’s rejection of t…
R v Totolas [2005] SASC 473
Citation 17 (Para 17)

…le or illogical, the appeal must fail. [2] See MacKenzie v R (1996) 190 CLR 348; MFA v R (2002) 213 CLR 606; Jones v R (1997) 191 CLR 439; R v Hansen (2002) 84 SASR 54; R v Blair & Kipa [2005] SASC 319.…
R v Blair [2005] SASC 319
Citation 18 (Para 17)

…In this context reference should be made to the decision of this Court in R v Hansen (2002) 84 SASR 54 (“ Hansen ”) which was relied on by the appellants. The defendant in that case was charged with a number of sexual offences against one victim which were said to have occurred on different occasions over a period o…
Regina v Cook [2002] NSWCCA 113
Citation 19

…respect for the responsibilities under which the applicant was placed by the conditions of the bond which must be taken to be a relevant factor: see Regina v Hansen (1961) 79 WN (NSW) 148.…

See all citing cases →

Cases Cited

R v A, D [2011] SASCFC 5
Citation 1 (Para 26)

…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].…
R v Jones [2010] SASCFC 58
Citation 2 (Para 4)

…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].…
R v Glanville [2010] NSWSC 364
Citation 3 (Para 1)

…] [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].…
R v Parr [2009] VSC 468
Citation 4 (Para 3)

…d 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].…
Burgess v State of New South Wales [2004] NSWSC 241
Citation 5 (Para 1)

…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].…
R v Wiggins [2003] QCA 367
Citation 6 (Para 2)

…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.…
R v Cardoso [2003] NSWCCA 15
Citation 7 (Para 1)

…d 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].…
R v Place [2002] SASC 101
Citation 8 (Para 25)

…s 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.…
Cameron v the Queen [2002] HCA 6
Citation 9

…inal 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 For…
R v Pennisi [2001] NSWCCA 326
Citation 10 (Para 28)

…cant 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 Oinonen [1999] NSWCCA 310
Citation 11 (Para 27)

…ross-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].…
[1996] VSC 47 [1996] VSC 47
Citation 12 (Para 3)

…his 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].…

Legislation Cited

Criminal Law (Sentencing) Act 1988 (SA) 32A
2 mentions (from Para 2)
Criminal Law Consolidation Act 1935 (SA) 15(1)
1 mention (from Para 21)
Sentencing Act 1995 (WA)
1 mention (from Para 24)