R v Harris - [2020] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARRIS
[2020] SASC 141
Reasons for Decision of The Honourable Justice Livesey
7 August 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - SENTENCE
The defendant was the father of Kobi Harris. When Kobi was five weeks old he was violently shaken by the defendant on two occasions during the early hours of 22 May 2018. The shaking caused Kobi profound brain damage, rendering him blind and unable to properly breathe or feed. Over time he was unable to swallow efficiently, could only be fed by a nasogastric tube and developed aspiration pneumonia. Kobi died on 8 August 2019 at the age of 16 months.
Initially, the defendant was charged with aggravated recklessly causing serious harm contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) to which he pleaded guilty. On 19 July 2019 he was sentenced by the District Court to imprisonment for four years, which took into account a 20 per cent discount for his plea of guilty, with a non-parole period of 18 months.
Following Kobi’s death, the defendant was charged on Information with the manslaughter of Kobi to which he pleaded guilty. For his plea of guilty he is entitled to a discount of up to 20 per cent. The parties submitted that the defendant would not be doubly punished if this Court sentenced the defendant on his plea of guilty to manslaughter as if that were the only charge, ordering that the sentence be served from the same date and concurrently with the existing sentence for aggravated recklessly causing serious harm.
Held:
1. There was no impediment to the laying of the manslaughter charge because the elements of the offences were not the same, Pearce v The Queen (1998) 194 CLR 610.
2. Ordinarily, the defendant could not again be sentenced for the same conduct or consequences addressed by the earlier sentence. To do so would amount to double punishment. If sentenced on that basis, it would ordinarily not be appropriate to order that the sentence be served concurrently with the earlier sentence, Pearce v The Queen (1998) 194 CLR 610.
3. However, there was an apparent conflict between the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 and the obiter dicta in PNJ v The Queen (2009) 83 ALJR 384. Because it was considered dicta in relation to similar legislation it is appropriate to follow the approach of sentencing afresh and ordering that the sentence be served concurrently with the earlier sentence. The defendant submitted that there were "special reasons" and the Director did not contend otherwise.
4. The defendant is sentenced to a period of imprisonment for six years which is backdated to commence on 19 July 2019. The existing non-parole period of 18 months is extended by two years pursuant to s 47 of the Sentencing Act 2017 (SA).
Criminal Law Consolidation Act 1935 (SA) s 13, s 23; Criminal Law (Sentencing) Act 1988 (SA) s 30; Sentencing Act 2017 (SA) s 3, s 4, s 44, s 96, referred to.
Da Silva v The Queen [2020] SASCFC 66; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Pearce v The Queen (1998) 194 CLR 610; PNJ v The Queen (2009) 83 ALJR 384; R v Cekic [2015] SASC 47; R v Culley (2019) 134 SASR 92; R v De Simoni (1981) 147 CLR 383; R v Partridge (2008) 102 SASR 233; Yardley v Betts (1979) 22 SASR 108, considered.

R v HARRIS
[2020] SASC 141
Criminal
LIVESEY J:
Introduction

Some time ago it was said that “every court sentence should primarily be surveyed in the light of one test: is that the best thing to do in the interest of the community? – always remembering, of course, that the convicted person, despite his wrongdoing, remains a member of the community”.[1]
[1] Edmund Davies J, (1963) 19 The Magistrate 183.
The care and protection of the young and vulnerable is important to any civilised society. The responsibility of the courts in assisting to safeguard the young and vulnerable in our society has been consistently recognised.[2] That responsibility is particularly acute in cases involving death or really serious harm to young infants in their own homes, when they are utterly helpless, and where they should expect to be safe and secure.
[2] R v Partridge (2008) 102 SASR 233, [7] (Gray, Sulan and David JJ) and R v Galffy [2009] SASC 261, [8] (Bleby J, with whom Doyle CJ agreed, Kelly J contra).
The primary purpose of sentencing a defendant is to protect the safety of the community.[3] Secondary purposes include ensuring punishment, to publicly denounce and deter offending, and to recognise the harm done to the victim and to the community.[4] However, the protection of the community can also be served by rehabilitation and the imposition of a sentence which, whilst operating as a deterrent to others, recognises the need to properly reflect on a defendant’s genuine contrition and capacity to make a worthwhile contribution to the community of which he remains a member:[5]
But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations.
[3]    Sentencing Act2017 (SA), s 3.
[4]    Sentencing Act2017 (SA), s 4.
[5]    Yardley v Betts (1979) 22 SASR 108, 112-113 (King CJ).
These are considerations that are also reflected in the secondary purposes of sentencing as well as observations made by this Court over many years.[6]
[6] Sentencing Act2017 (SA), s 4, Webb v O’Sullivan [1952] SASR 65, 66 (Napier CJ) and Birch v Fitzgerald (1975) 11 SASR 114, 116-117 (Bray CJ).
Kobi Harris
Kobi Harris was born on 13 April 2018. When Kobi was just five weeks old he was violently shaken by his father on two occasions during the early hours of 22 May 2018.
His father, the defendant Brandon Lee Harris, was then aged 21 years. He was caring for his son whilst Kobi’s mother was sleeping. Kobi was not settling. He was not feeding. He was crying incessantly. Doctors later that morning saw that Kobi’s pupils were dilated and his limbs limp. He was unresponsive.
The effect of the shaking was to cause young Kobi “profound brain damage”, rendering him blind and unable to properly breathe or feed. Over time he developed an inability to efficiently swallow, as well as aspiration pneumonia. He could eventually only be fed by a nasogastric tube. Despite loving and attentive foster care, his condition deteriorated. Kobi died at 16 months on 8 August 2019.[7] Though he died earlier than expected, he was never going to reach adulthood.
[7] On the medical evidence, there was no issue about causation and, of course, the “year-and-a-day rule” has long gone, Thompson v The Queen (1989) 169 CLR 1; PNJ v The Queen (2009) 83 ALJR 384, [2] (the Court) and PGA v The Queen (2012) 245 CLR 355, [214] (Bell J). Some of the potential legal issues associated with causation which can remain were recently reviewed by the High Court in Swan v The Queen (2020) 94 ALJR 385.
The defendant and his earlier sentence
Initially, the defendant was charged with aggravated recklessly causing serious harm,[8] to which he pleaded guilty. On 19 July 2019 Judge Soulio sentenced him to imprisonment for four years with a “lower than usual” non-parole period of 18 months. Were it not for the plea of guilty he would have sentenced the defendant to imprisonment for five years.
[8] Contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA).
Following Kobi’s death, on 15 November 2019 the defendant was charged on Information with manslaughter. That is a major indictable offence which carries a maximum penalty of life imprisonment.[9] The defendant pleaded guilty on 29 May 2020, which entitles him to a discount of up to 20 per cent pursuant to s 40(3) of the Sentencing Act 2017 (SA).
[9] Criminal Law Consolidation Act 1935 (SA), s 13.
The fact of the earlier sentence raises difficult legal issues.
The first issue is whether the manslaughter charge can be laid. Neither counsel suggested that the manslaughter charge could not be laid. I accept that the elements of the manslaughter charge are not the same as those for which he has already been sentenced, and accordingly the second charge can be laid.[10]
[10] Pearce v The Queen (1998) 194 CLR 610 and PNJ v The Queen (2009) 83 ALJR 384, unlike those cases, no issue of abuse was raised here. The difference in the legal elements of the offences means that no plea of autrefois convict can be made, cf R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 (Bray CJ, Wells and Sangster JJ) and see also Rucioch v Police (2004) 88 SASR 326 (Doyle CJ) and Arthur v Police (2008) 101 SASR 529 (Gray J).
The key differences between the two charges concern (1) the different mental elements as well as, of course, (2) the degree of harm caused.[11] For present purposes it is immaterial whether this is a case of manslaughter by unlawful and dangerous act, or manslaughter by criminal negligence. The plea to manslaughter may be taken to be an acknowledgment that there was the intention of, either, an appreciable risk of serious injury associated with an intentional unlawful act,[12] or a high risk of death or really serious injury associated with criminally negligent conduct.[13] As well, though not intended, death was caused.[14]
[11] The elements of an offence under s 23(1) of the Criminal Law Consolidation Act1935 (SA) of causing serious harm with intent to cause serious harm, were summarised in R v Cekic [2015] SASC 47, [6] by Kourakis CJ as (1) causing harm to the alleged victim (causation); (2) that the harm is serious harm; (3) that the accused acted deliberately as opposed to accidentally; (4) that the accused acted unlawfully; and (5) at the time the accused intended to cause serious harm. Sections 23(1) and 23(3) include, as before Judge Soulio, the alternatives of an “intentional” offence and of “recklessly” causing serious harm: R v Kestell [2013] SASCFC 55, [25]-[28] (Gray, Sulan and Nicholson JJ).
[12] R v Bridgland [2014] SASCFC 80, [7] (Gray, Sulan and Bampton JJ) and R v Watherston [2019] SASC 109 (Bampton J).
[13] Wilson v The Queen (1992) 174 CLR 313 (the Court).
[14] As King CJ explained in R v Hietanen (1989) 51 SASR 510, 517, the consequences of a defendant’s conduct “are always a factor in assessing the gravity of crime”.
However, these two differences aside, the defendant has already been punished for the conduct that underpins the manslaughter charge, as well as the fact that serious injury (but not death) was caused. This raises the second issue: as McHugh, Hayne and Callinan JJ said in Pearce v The Queen “[m]ore difficult questions” arise when ensuring that a defendant in these circumstances is appropriately, but not “doubly punished”:[15]
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.
[15] Pearce v The Queen (1998) 194 CLR 610, [33], [40]. This is sometimes regarded as an instance of double jeopardy: “a person should not be twice punished for what is substantially the same act”, R v Hoar (1981) 148 CLR 32, 38 (Gibbs CJ, Mason, Aickin and Brennan JJ).
In other words, and consistently with R v De Simoni, the defendant can only be sentenced for what he has been charged with, excluding from consideration any part of the conduct separately charged or, a fortiori, already the subject of a sentence.[16]
[16] R v De Simoni (1981) 147 CLR 383 and Pearce v The Queen (1998) 194 CLR 610, [31] (McHugh, Hayne and Callinan JJ).
In Pearce v The Queen the appellant was charged (among other things) with maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm (count 9) and breaking and entering a dwelling-house of the same victim and, while therein, inflicting grievous bodily harm on him (count 10). The two charges arose out of a single episode. The primary Judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences of imprisonment wholly concurrent, even though it had been submitted that the sentencing of the appellant for the two counts would have placed the appellant in double jeopardy.
The appellant’s appeal to the Court of Criminal Appeal was dismissed on the basis that there was neither double jeopardy nor double punishment. The High Court allowed the appeal. In their joint reasons, McHugh, Hayne and Callinan JJ held that the appellant had, prima facie, been doubly punished for the one act:[17]
… we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may be said to reveal error in that to do so failed to take account of the differences in conduct which were the subject of punishment on each count.
[17] Pearce v The Queen (1998) 194 CLR 610, [49] (McHugh, Hayne and Callinan JJ).
In the matter before this Court, the argument was, at least implicitly, that any element of “double punishment” can be addressed by ordering that both sentences be served concurrently.[18] It was urged on me that I should fix an appropriate head sentence for manslaughter and order that it be backdated to the date when Judge Soulio sentenced the defendant last year.
[18] See Sentencing Act 2017 (SA), s 44.
It was submitted that this was supported by PNJ v The Queen,[19] where the defendant was convicted in 2003 of wounding with intent to cause grievous bodily harm, sentenced to imprisonment for seven years with a non-parole period of four years, and backdated to commence in 2002 when he was taken into custody. The victim died in 2004 and the defendant was then charged with murder. He contended that his prior conviction was a plea in bar and that to proceed with the new charge was an abuse of process. These arguments were said to be reinforced by 2007 amendments that mandated a mandatory minimum non-parole period of 20 years for a person sentenced to life imprisonment for murder, unless “special reasons” were shown to exist.[20] The High Court’s decision, however, rested on the proposition that:[21]
… if, as the applicant submitted, it is necessary to focus attention only upon how the provisions for mandatory minimum non‑parole periods would apply in his case, then, contrary to his submissions, those provisions will not require him to serve a non‑parole period that is any longer than if he had been prosecuted only for murder. The non‑parole period may be fixed to begin at the date the applicant was first taken into custody.
[19] PNJ v The Queen (2009) 83 ALJR 384 (the Court).
[20] Although these arguments were doubted because “the punishment imposed on an offender will be better identified, at least for most purposes, as both the head sentence (here, life imprisonment) and the non‑parole period that is fixed”, PNJ v The Queen (2009) 83 ALJR 384, [11] (the Court).
[21] PNJ v The Queen (2009) 83 ALJR 384, [12]. This approach depended on a view of the former s 30(1) of the Criminal Law (Sentencing) Act 1988 (SA), now s 44(1) of the Sentencing Act2017 (SA), which permitted the backdating of a sentence, as had been held by the Full Court of this Court in that case. Nonetheless, the High Court also said that “it may be that the power to backdate … is to be found in s 30(2)(b)” and that “[n]o narrow construction should be given to the words “time in custody in respect of an offence”” (now s 44(2)(b)) but, ultimately, it was “not necessary to decide” that issue, PNJ v The Queen (2009) 83 ALJR 384, [17]-[19] (the Court).
The defendant in PNJ v The Queen contended that this approach was tantamount to ordering that the sentence be served concurrently, and he relied on Pearce v The Queen to the effect that this did not avoid double punishment.[22] The High Court rejected the argument because there was a “contrary legislative intention” and imposing “the only sentence that the law permits cannot be an abuse”.[23]
[22] Pearce v The Queen (1998) 194 CLR 610.
[23] PNJ v The Queen (2009) 83 ALJR 384, [21]-[24] (the Court).
It must be remembered that PNJ v The Queen only concerned arguments about a permanent stay based on an asserted abuse of process. Nonetheless, the Court considered the potential consequences of a plea, arguably in a manner inconsistent with Pearce v The Queen and by reason of a “contrary legislative intention”.
Unconstrained by authority, I would have difficulty reconciling what was decided in Pearce v The Queen with what appears to be obiter dicta in PNJ v The Queen. It appears to me wrong in principle to punish twice for the same conduct. In this case that would mean avoiding punishment twice for those elements of the charges, or aspects of the conduct, common to both charges. That would also mean imposing a sentence targeting the more culpable intention and the more serious outcome associated with a charge of manslaughter, and ordering that the sentences be served cumulatively.
However, the underlying circumstances in PNJ v The Queen are very similar (here too the statute stipulates a mandatory minimum non-parole period unless there exist “special reasons”) and the obiter in that case was carefully considered.[24] It appears to have been followed by a Judge of this Court in the same case when the defendant later pleaded guilty to murder and was sentenced.[25]
[24] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135] (the Court). See also CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [48]-[50] (Gummow, Heydon and Crennan JJ), [63] (Hayne J). The debate over whether the judges of lower courts are obliged to follow “seriously considered dicta” of the High Court was reviewed in Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323, [112] (Campbell JA) and Ying v Song [2009] NSWSC 1344, [18]-[29] (Ward J). In the latter case her Honour accepted that “considered dicta of appellate courts, though not strictly binding on courts in a lower or equal position within the judicial hierarchy, must be afforded great weight and should be departed from only with the greatest of caution” (at [19]) and, in relation to the dicta of a majority of the High Court, “[i]f a judge ought not to depart from the well-considered dicta of an intermediate appellate court unless convinced that it is plainly wrong, then, a fortiori, that must be true of the well-considered dicta of an ultimate appellate court” (at [25]).
[25] In her sentencing remarks Layton J found that there were “special reasons” and on 22 April 2009 she fixed a non-parole period of 12 years backdated to 2002. Importantly, she said that “such a sentence adequately takes into account that you have already been punished for some of the elements of your offending”: R v Pompey [2009] SASC (SCCRM-06-91).
As well, it seems to me that principles of “totality”[26] and “proportionality”[27] would require that, overall, the punishment should not exceed that which would be imposed had the defendant only been charged with manslaughter, assuming of course, that all the defendant’s criminal conduct can be brought within that charge.[28]
[26] Pearce v The Queen (1998) 194 CLR 610, [45] (McHugh, Hayne and Callinan JJ) and Mill v The Queen (1988) 166 CLR 59 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
[27] Hoare v The Queen (1989) 167 CLR 348, 354 (the Court) and Veen v The Queen (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ).
[28] Even if the defendant had only been charged with manslaughter, his victim’s suffering for well over a year before death would have to be factored into the sentencing analysis.

In these circumstances, I have decided to accede to the submissions of the parties and sentence the defendant on his plea of guilty to manslaughter as if that were the only charge, and order that the sentence be served from the same date and concurrently with the existing sentence for aggravated recklessly causing serious harm.
However, if I am wrong in this approach, I would have imposed a sentence which had the same effect, albeit operating cumulatively on the earlier sentence. That means it would commence on the expiry of the earlier sentence so that the final date of the head sentence and the final date of the extended non-parole period would have been the same as what I shall in fact impose.[29]
[29] It is not possible to impose a separate non-parole period backdated to the commencement of the earlier sentence because the existence of the earlier non-parole period and s 47 of the Sentencing Act 2017 (SA) mandates that the non-parole period must be reviewed and extended.
On this alternative approach, I would not be imposing a sentence for that which has already been punished by Judge Soulio, and I would only be sentencing the defendant for the differences between the earlier charge and the manslaughter charge which have not already been brought to account. That is, the more culpable intention and the more serious harm associated with manslaughter, but not with aggravated recklessly causing serious harm.
Sentencing the defendant
Brandon Lee Harris, you have pleaded guilty to manslaughter in that on 22 May 2018 at Kadina you unlawfully killed Kobi Wayne Harris. The maximum sentence is life imprisonment.
I have already recited the essential circumstances of your offending.
Kobi sustained bilateral subdural and subarachnoid haemorrhages with widespread bilateral cerebral oedema as well as multiple left-sided parenchymal haemorrhages and contusions — in ordinary language, widespread swelling and bleeding of the brain. This was associated with respiratory compromise and numerous bilateral, multilayered retinal haemorrhages.
I should add that, apart from Kobi’s brain damage, he sustained other injuries. These included a bruise to the left forearm. Although you told a doctor that this was caused by a hot milk bottle you later admitted that this was probably caused when you shook your son. Kobi also had bruising to the tongue and he was bleeding from the lip. You told doctors that these injuries were caused by a combination of “the bottle” and by Kobi grabbing his own face and mouth. However, normal feeding does not cause bruising and Kobi was too young to injure himself.
There were abrasions akin to “carpet burns” on the toes of the left foot which had become infected. You said that this was caused by clothing. However, that is not a likely explanation. In addition, Kobi was found to have a fracture of the left clavicle that was healing, as well as a possible fracture to the left fourth rib. You said that about two weeks before 22 May 2018 you were home alone with Kobi and making his bottle in the kitchen. You said that Kobi “threw himself” out of your arms and landed onto the floor. On another occasion, you said that he kicked free. As I made clear to your counsel at the time I heard submissions, I do not accept those explanations. However, I am not sentencing you for these other injuries.
When at the Wallaroo Hospital on 22 May 2018 you told nurses that you had been feeding Kobi when he flung himself back and that he may have hit his head on the arm of a lounge. That was a lie. When you were first interviewed on 28 May 2018 at the Women’s and Children’s Hospital you falsely denied causing any of Kobi’s injuries.
Eventually, on 19 June 2018, you admitted your wrongdoing and provided a handwritten confession. You said that you had not told the truth because you were scared and you admitted shaking your son for two to three seconds on two occasions. You said that you did not know what was wrong with your son or “why he kept crying … I got upset and I shook him”. After you shook Kobi a second time he stopped crying, drank some milk and went to sleep.
I received and have read carefully your handwritten letter in which you apologise for all the heartache, grief and anger that you have caused. You say that you hate yourself for what you have done and that you love and miss your son and you apologise to him.
I accept that you are genuinely contrite, even though I remain concerned that you have not yet fully explained what happened to cause the other injuries in the weeks before 22 May 2018.
I have also had the benefit of the victim impact statements from your former domestic partner, Ms Alkira Graham, and her mother, Ms Rebecca Walker, as well as Kobi’s foster carer, Ms Gemma Noone. As you know, these women, and others, remain profoundly affected by Kobi’s death.
Ms Graham says that she misses Kobi every day and that she was “absolutely devastated” when she lost him and that she has become even more protective of her second son, feeling that she cannot trust anyone around him. Ms Walker describes missing and thinking of Kobi every day and plans to tell his little brother all about him. Ms Harris describes needing to physically support Kobi because he could not roll over, crawl or grasp a toy. She too has struggled after his death.
I have been provided with a copy of the psychological report by Dr Jack White dated 6 January 2019. I have carefully considered it, although it has not been updated since the manslaughter charge was laid. I have also carefully considered, and rely upon, the details set out in the sentencing remarks delivered by Judge Soulio on 19 July 2019. It is not necessary for me to repeat them.
Finally, I have been assisted by correspondence from Mr Alan Scarborough dated 1 July 2020 and a detailed pre-sentence report. Since your incarceration you have generally been compliant and respectful, occupied in the prison kitchen. You have been under the supervision of the high-risk assessment team because of concerns about your safety and the hard time you have been getting since your case was seen on the news. You are understandably anxious and depressed.
Apart from this material, I have also carefully considered the submissions made on your behalf by your counsel.
I turn to sentence you. You have not previously been in any trouble with the criminal law. Whilst I accept that you did not intend to cause the death of your son, and that his most serious injuries were caused in a matter of moments, this is a case where the protection of the community and deterrence, particularly generally deterrence, must play a significant role. As has been said, where a “child dies in circumstances such as the present, then it is incumbent upon the court to make it clear to the community that such conduct will result in a substantial term of imprisonment”.[30]
[30] R v Partridge (2008) 102 SASR 233, [7] (Gray, Sulan and David JJ), notwithstanding that it is “well recognised that the sentencing discretion for the crime of manslaughter is very wide in keeping with the very broad range of seriousness of the criminal offending that may attach to any particular case”, R v McPartland (2014) 120 SASR 69, [17]ff (Peek J, with whom Stanley and Nicholson JJ agreed), a case where a Crown sentence appeal failed in a case of manslaughter by criminal neglect where the defendants were sentenced to 9 years each, which after allowance for their respective guilty pleas, were reduced in the case of Mr McPartland to seven years (with a four years and two months non parole-period), and in the case of Ms Polkinghorne to eight years (with a four years and nine months non parole-period).
Were it not for your plea of guilty, I would have sentenced you to a term of imprisonment for seven years and six months. Were it not for your youth and genuine contrition, I would have started with a longer head sentence. I think that you have very good prospects for successful rehabilitation. After making an allowance of 20 per cent for your plea of guilty, you are sentenced to imprisonment for six years. It was not suggested that your sentence should be suspended and, in any event, I find that there is no “good reason” for doing so.[31]
[31] Sentencing Act 2017 (SA), s 96(1). Likewise, no submission was made seeking a home detention order under s 71. In any event, considerations relating to deterrence, denunciation and punishment demonstrate that orders such as these would be inappropriate.
Because this is a “serious offence against the person” within the meaning of s 47(12)(e), by s 47(5)(d) the mandatory minimum non-parole period is four‑fifths of the head sentence unless “special reasons exist” pursuant to ss 48(2)(b) and 48(3). That would have mandated a non-parole period of four years, nine months, two weeks and four days.
However, your counsel submits that, by reason of s 48(3)(b) and your plea of guilty, together with the circumstances surrounding that plea, there exist “special reasons”. The Director, I am told, does not contend otherwise. I am prepared to find that, in the unusual circumstances of your case and your plea, special reasons exist. Nevertheless, even if there exist special reasons, the fact that Parliament saw fit to impose a minimum non-parole period has some bearing on the exercise of my discretion.[32]
[32] R v Hallcroft (2016) 126 SASR 415, [38] (Kourakis CJ).
I am prepared to accept that the punishment imposed by this Court will operate in circumstances where you are still punishing yourself for your wrongdoing. You remain guilt-ridden.
I have given careful consideration to the circumstances I have already outlined, particularly to your personal circumstances and prospects for rehabilitation and, as you describe it, your determination to “leave prison a better person”. If your manslaughter sentence were being considered without the earlier sentence which has been imposed, I would have fixed a non-parole period of three years and six months, backdated to commence on 19 July 2019.
As you are already serving a sentence of imprisonment with a non-parole period, I am required by s 47(1)(b) to review and extend the existing non-parole period. Your present non-parole period is 18 months and I extend that non-parole period by two years.[33]
[33] R v Culley (2019) 134 SASR 92, [54], [58]-[59] (Kourakis CJ, Peek and Hughes JJ). Had I been sentencing under the alternative approach earlier outlined, this would have resulted in a head sentence of two years and six months, reduced by 20 per cent on account of the guilty plea to two years, to operate cumulatively on the earlier sentence of four years. When reviewing and extending the non-parole period presently in place, s 47(1)(b) prevents any order which has the effect that “the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court”, so that the non-parole period extension of two years could not exceed the head sentence of two years that might, on this alternative approach, have been imposed, Da Silva v The Queen [2020] SASCFC 66, [52] (Livesey J, with whom Kourakis CJ and Stanley J agreed).
Mr Harris, I can only hope that you take advantage of the opportunities you now have to reflect and to undertake counselling and treatment so that you do, in fact, leave prison a better person.