R v Kelly
[2023] SASCA 22
•2 March 2023
Supreme Court of South Australia
(Court of Appeal: Criminal)
R v KELLY
[2023] SASCA 22
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
2 March 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
After stabbing the victim in the torso, the respondent stole one pound of cannabis from his car.
The respondent pleaded guilty to aggravated robbery. The sentencing Judge commenced with a starting point of two years and six months imprisonment with a non-parole period of one year and one month, reduced on account of the respondent's time served in custody and plea of guilty to one year, seven months and 14 days imprisonment with a non-parole period of five months and 28 days. The sentence was ordered to be served on home detention.
The Director of Public Prosecutions (SA) seeks permission to appeal against the sentence imposed on the ground of manifest inadequacy.
Held (Bleby and David JJA) granting the Director permission to appeal, allowing the appeal and resentencing the respondent:
1.There are considerations that speak against a grant of permission, as identified by Lovell JA, in particular the respondent’s young age, rehabilitative efforts, and personal circumstances. However, the length of the sentence and the order that it be served on home detention amounted to an extreme departure from the appropriate standard, having regard to the seriousness of the offending.
2.The respondent is resentenced. The respondent is sentenced to five years’ imprisonment, reduced by 15 per cent to four years and three months for his guilty plea. Their Honours impose a low non-parole period of two years and three months, having regard to the respondent’s personal circumstances. Their Honours give the credit applied by the judge for time spent in custody of six months and two days, as well as an additional credit of six months and four days for time spent on home detention. The resulting head sentence is three years, two months and 24 days. The non-parole period is one year, two months and 24 days. The sentence is to commence from the date the respondent is taken into custody.
Held (Lovell JA) refusing permission to appeal:
1.The sentence is manifestly inadequate; however, this is not a "rare and exceptional" case that warrants the intervention of this Court.
Criminal Law Consolidation Act 1935 (SA) s 137; Criminal Procedure Act 1921 (SA) s 157; Sentencing Act 2017 (SA) s 71, referred to.
Director of Public Prosecutions (Vic) v Josefski [2005] VSCA 265; Everett v The Queen (1994) 181 CLR 295; Green v The Queen (2011) 244 CLR 462; House v The King (1936) 55 CLR 499; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Malvaso v The Queen (1989) 168 CLR 227; Pearce v The Queen (1998) 194 CLR 610; R v Brant [2018] SASCFC 72; R v Butler (a pseudonym) [2022] SASCA 112; R v Buttigieg [2020] SASCFC 38; R v Dell (2016) 126 SASR 571; R v Drewett (1983) 35 SASR 344; R v Harkin [2011] SASCFC 24; R v Hicks (1987) 45 SASR 270; R v Jones [2022] SASCA 105; R v JW [2010] NSWCCA 49; R v Kong (2013) 115 SASR 425; R v M, H (2007) 168 A Crim R 557; R v McIntyre (2020) 138 SASR 17; R v Nemer (2003) 87 SASR 168; R v Newton [2002] SASC 36; R v Place [2002] SASC 101; R v Rendic [2021] SASCA 23; R v Yaroslavceff [2022] SASCA 123; Soun v The Queen; R v Soun [2021] SASCA 119, considered.
R v KELLY
[2023] SASCA 22Court of Appeal – Criminal: Lovell, Bleby and David JJA
LOVELL JA: The respondent lured the victim, Mr Smart, to his premises under the pretence of purchasing cannabis from him. When Mr Smart arrived, the respondent stabbed him in the torso before stealing one pound of cannabis from his car. Mr Smart sustained a six-centimetre stab wound to his chest.
The respondent pleaded guilty to aggravated robbery.[1] The sentencing Judge commenced with a starting point of two years and six months imprisonment with a non-parole period of one year and one month. The sentence was reduced on account of the respondent’s plea and time served in custody to one year, seven months and 14 days imprisonment with a non-parole period of five months and 28 days. The sentencing Judge ordered that the sentence be served on home detention.
[1] Contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).
The Director of Public Prosecutions contends that the starting point for the head sentence and the non-parole period are manifestly inadequate and warrant the intervention of this Court. The same submission is made in relation to the order that the sentence be served on home detention.
Factual basis of the offending
At about 3.00 pm on 4 September 2021, Mr Smart arrived at the respondent’s residential address following a text message exchange regarding the sale of cannabis. It had been agreed, via text, that Mr Smart would sell one pound of cannabis to the respondent for $2,800. The victim and the respondent were known to each other from primary school.
On arrival, Mr Smart sent a message to the respondent. Mr Smart had the cannabis stored in a shopping bag on the passenger seat. The respondent approached Mr Smart, who was standing on the road by the passenger side of his parked vehicle. When Mr Smart reached out to shake the respondent’s hand, he saw that the respondent was holding a knife.
The respondent advanced toward Mr Smart and stabbed him in the chest. Mr Smart tried to protect himself by running backwards with his hands outstretched. The respondent continued the stabbing motions after Mr Smart ran backwards and after he fell to the ground, repeatedly asking him “where is the money, where is the money?”. Mr Smart responded that he did not have any money, but that the cannabis was in his car. The respondent took the cannabis from the car and ran away.
Mr Smart sustained a six-centimetre stab wound to his right anterior chest wall, which created a large haematoma beneath the skin. Surgery was required to treat the stab wound. He also sustained small cuts on his left and right thumbs.
Later that day, a police search of the respondent’s premises revealed the shopping bag containing the cannabis. Police further located and seized two knives, one of which was 240 millimetres in length and matched the description provided by Mr Smart of the knife used in the attack.
The respondent was arrested. While in police custody, the respondent spat at a police officer for which he was later charged with one count of assault.
The respondent declined to answer police questions but subsequently provided an explanation to forensic psychiatrist, Dr Jules Begg:
He explained that Ben Smart was a dealer in marijuana and that he anticipated that Ben would have money and a knife. He decided to rob him by asking to buy marijuana, but instead to take the money he believed that Mr Smart would be carrying. He had drunk a fair bit of alcohol that day and was alcohol-affected, and now thinks that he was likely more affected than he realised at the time. When he saw Mr Smart, he was nervous, as he was going to rob him. He was feeling jumpy about the impending robbery. He said that instead of his plan to ask for the marijuana, he made a mistake and asked for the money. Making a mistake confused him. Mr Smart didn't move. At that point, he panicked, thinking that Mr Smart might attack him with a knife. He therefore attacked Mr Smart, stabbing him with his knife.
The respondent also provided an account of the offending to the Department of Correctional Services home detention report writer:
Mr Kelly reported that he made his decision to rob his victim of his cannabis so that he could have some for his own use but to also sell a lot of it because he needed money. At the time of the offending, he was unemployed and in receipt of Centrelink Jobseeker allowance and said that he didn’t have enough money to pay for his rent. Albeit he did state that he used $300 of his Centrelink money on the day of the offending to attend a fishing store and purchase the $300 knife that he used in the commission of his offending.
In his victim impact statement, Mr Smart described the “ugly scar” he now has on his chest. Mr Smart also spoke of suffering tremors when he becomes nervous or scared and of shaking uncontrollably when under pressure. He finds that he is now more apprehensive, less trusting and less outgoing. In addition, he feels anxious and most nights experiences trouble sleeping. He said that his social life suffered because he shuts himself off from family and friends. Mr Smart has experienced financial difficulties due to the time taken off work to recover. He fears encountering the respondent in the community.
Personal circumstances of the respondent
The respondent was 22 years of age at the time of sentence. He has no history of sustained employment. He was unemployed at the time of the offending and received a Centrelink allowance.
The sentencing Judge summarised the circumstances of the respondent as detailed in Dr Begg’s report. The respondent was bullied from kindergarten until the age of eight. In 2011, at age 10, he moved from the country to Adelaide with his parents. His parents separated shortly thereafter. The respondent did not have a close relationship with his father. At one stage, the respondent’s father moved him into a share house where he was exposed to drugs. After an altercation with his father, the respondent became homeless.
Since the age of 16, there has only been an approximate three or four-month period in which the respondent did not use alcohol or drugs. He regularly used cannabis and, intermittently, methamphetamine. In the 18 months before his incarceration, he used Xanax (alprazolam) on a weekly basis.
The sentencing Judge accepted that while the respondent’s relationship with his mother was not always strong, it had improved. At the time of sentence, the respondent was in daily contact with his mother and had her support.
In March 2020, the respondent presented at the Emergency Department of the Royal Adelaide Hospital with psychosis. The respondent was admitted to a psychiatric ward at Flinders Medical Centre from 11 May 2020 to 16 May 2020. After his release from hospital, the respondent returned home only for his mother to find him in his bedroom, having taken 40 Xanax tablets in an attempted suicide.
While incarcerated for the subject offending, the respondent expressed suicidal ideas. He was transferred to James Nash House for a few weeks. Dr Begg noted that in April 2022, at the time of the consultation, the respondent no longer had suicidal ideas and was not self-harming. The respondent had seen a psychologist briefly as a child but not as an adult. He expressed to Dr Begg that some input from Drug and Alcohol Services might be of benefit.
Dr Begg diagnosed the respondent with a mixed personality disorder. He discussed the diagnosis and relevant prospects for rehabilitation in the following terms:
Mr Kelly has a Mixed Personality Disorder. There are features of Antisocial Personality Disorder including his offending behaviour, unrealistic life goals and a lack of awareness of the impact of his behaviour on other people e.g. blaming family members for not providing him with accommodation despite his past poor behaviour. There are also Borderline Personality Disorder features, including his self-harming and mood instability, although the mood changes were not persistent enough to consider a mood disorder diagnosis. …
He has used a variety of substances in an excessive manner, including alcohol and alprazolam, as well as marijuana. He did not describe a large amount of methamphetamine use.
He presents as being quite immature with regard to his expectations of living as an adult. in this regard, drug and alcohol counselling often has a focus on practical social aspects of living a healthy lifestyle, which would be beneficial. …
Although he is 21 years of age, he doesn't seem to have matured very much from when he first left home. From a psychiatric rehabilitation perspective, he needs to establish structures in the community, such as housing and employment. He needs to avoid pro-Criminal elements which, unfortunately, he will be exposed to in a custodial sentence. As he lacks social skills, he should utilise any programs that are available in prison. In my experience, such programs are not usually offered until after sentencing.
After his release from custody, he would benefit from participating in a Dialectical Behaviour Therapy program. This is usually a six-month group program for people with Borderline Personality Disorder. He would also benefit from drug and alcohol counselling. He needs a mature role model in his life, such as a social worker.
The sentencing Judge noted the submission of defence counsel at trial that since the respondent had been in custody, his “head is now clearer”. He had abstained from alcohol or drug use. It is clear that the respondent recognised that the offending was foolish and ill-conceived and did not consider the consequences of the offending.
The respondent’s antecedent criminal history includes convictions for offences of carrying prohibited weapons, damaging property, assault and breaching bail. He had previously been subject to two bail agreements with supervision conditions. The first agreement commenced on 6 May 2021. Shortly after entering the agreement, the respondent was charged with further offences and returned to custody. He was subsequently released on the second agreement on 10 June 2021, from which time the two agreements ran concurrently. The Department of Correctional Services home detention report writer observed:
Regarding his response towards supervision, Mr Kelly attended his initial intake appointment on 11 June 2021 as well as his next four scheduled appointments, but he did fail to attend for supervision on 23 July 2021. As he did not make any further contact with DCS, attempts were made to contact him via telephone, however, they were unsuccessful so a warning/direction to report letter was sent to him directing him to report on 30 August 2021. To his credit, Mr Kelly reported for supervision on that date. His next scheduled supervision appointment was on 16 September 2021, however he was arrested and taken into custody for the current matter which occurred on 4 September 2021.
The respondent committed the relevant offending whilst subject to the supervised bail agreements.
The sentence imposed
In arriving at the sentence to be imposed, the sentencing Judge remarked:
In sentencing you for this offending the need to protect the safety of the community is the most important factor. The sentence needs to deter others from committing acts of violence as well as deter you. You went to meet your friend armed with a knife. You were both taking part in an illegal drug deal.
The sentence also needs to promote your rehabilitation. There is no doubt that the seriousness of the offending is such that the only penalty that may be justified is one of imprisonment.
Her Honour commenced with a starting point of two years and six months imprisonment, reduced by 15 per cent on account of the respondent’s guilty plea to two years, one month and 16 days imprisonment. The sentencing Judge had regard to the circumstances of the respondent, including his age, the continued support from his mother, his lack of entrenched criminal history, his use of drugs and alcohol and Dr Begg’s comments as to the benefit of the respondent commencing rehabilitation in the community. Her Honour fixed a non-parole period of one year and one month.
The sentence and non-parole period were reduced by six months and two days on account of the respondent’s time served in custody, resulting in a head sentence of one year, seven months and 14 days imprisonment and a non-parole period of five months and 28 days.
The sentencing Judge then turned to consider whether to order the sentence to be served on home detention.[2] Her Honour observed:
Sentencing is a difficult balancing exercise. On the one hand I have very serious offending, where you robbed your friend armed with a knife. It was, to an extent, premeditated. On the other hand, I have a very young man in front of me who does not have an entrenched history of criminal offending. He also has a supportive mother.
I have taken into account the opinions expressed by Dr Begg, which I have already referred to. I have also taken into account that this sentence would commence from 27 February this year and that you have, indeed, been in custody for a longer period than that in relation to that other offending.
To date, you have been in custody in relation to this matter for just over six months. I think that is a significant time for a man of your age and I hope that it has been a salutary experience for you. …
If it had not been for the fact that you had served six months already in gaol for this offending, I would not be considering a home detention order. However, despite the seriousness of the offending, plus your very young age, your lack of entrenched criminal history and the fact that you have never had supervision before and you have been abstinent from drugs and alcohol whilst in gaol, I have decided to make an order that you serve the sentence on home detention.
[2] Pursuant to s 71 of the Sentencing Act 2017 (SA).
Appeal grounds
The Crown appeals against sentence on the sole ground of manifest inadequacy. The Director particularised that Ground as follows:
(i)The period of imprisonment of two years and six months is manifestly inadequate.
(ii)The non-parole period of five months and 28 days is manifestly inadequate.
(iii)The Judge erred in ordering that the sentence be served on home detention.
Principles governing an appeal by the Crown
The principles governing a Crown appeal against sentence are well established.
At common law, there was no jurisdiction to entertain an appeal by a convicted person or the Crown against conviction or sentence. The appellate jurisdiction and the powers necessary for its exercise are created by statute.[3] The enabling jurisdiction for a prosecution appeal against sentence is found in South Australia in s 157(1)(iii) of the Criminal Procedure Act 1921 (SA) (“the Act”). It relevantly states:
[3] Lacey v Attorney-General (Qld) (2011) 242 CLR 573.
157—Right of appeal in criminal cases
(1) Appeals lie to the Court of Appeal as follows:
(a) if a person is convicted on information—
…
(iii)subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Court of Appeal;
(Emphasis added)
The powers necessary for the exercise of the jurisdiction are found in s 158(7) of the Act. It relevantly states:
(7) Subject to subsection (8), on an appeal against sentence, the Court of Appeal must—
(a) if it thinks that the sentence is affected by error such that the defendant should be re-sentenced—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for re-sentencing; or
(b) in any other case—dismiss the appeal.
The jurisdiction to entertain an appeal against sentence is supported by powers to increase or reduce sentences affected by appealable error.
With the introduction of legislation enabling the prosecution to appeal against sentence throughout Australia, there was judicial concern that criminal statutes should not be construed to erode the common law protection against double jeopardy. To protect the ‘double jeopardy’ principle, it is now well established that leave (permission) should only be granted with respect to prosecution appeals against sentence in cases that are “rare and exceptional”.
In Malvaso v The Queen,[4] Deane and McHugh JJ identified a Crown appeal against sentence as being “in a practical sense ... contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy”. This reasoning was adopted in Everett v The Queen where the majority (Brennan, Deane, Dawson and Gaudron JJ) observed:[5]
Section 401(2)(c) of the Tasmanian Criminal Code confers upon the Court of Criminal Appeal jurisdiction to grant leave to the Attorney-General to appeal against sentence. Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
[4] (1989) 168 CLR 227.
[5] (1994) 181 CLR 295, 299.
As Maxwell P in Director of Public Prosecutions (Vic) v Josefski observed:[6] “It is the common law’s abhorrence of double jeopardy which explains why a Crown appeal against sentence should occur in the ‘rare and exceptional case’”.
[6] [2005] VSCA 265 at [13].
Thus, prosecution appeals involve a two-step process. First, an appellate court determines whether error been established, as error must be identified before an appellate court can interfere. A specific error may be identified if a sentencing judge has acted upon a wrong principle, mistaken the facts, failed to consider a material consideration, or allowed irrelevant matters to impact the decision. Alternatively, where a specific error cannot be identified, the sentence imposed can be so manifestly excessive or inadequate that the only inference to be drawn is that there was a failure to properly exercise the sentencing discretion.[7]
[7] House v The King (1936) 55 CLR 499.
Manifest inadequacy is a conclusion. In determining whether a sentence is or is not plainly inadequate, an appellate court must essentially repeat the sentencing task undertaken by the sentencing judge and in doing so, determine whether the sentence imposed fell outside the permissible range such that it must be plainly inadequate. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.[8]
[8] R v Buttigieg [2020] SASCFC 38; R v McIntyre (2020) 138 SASR 17; R v Yaroslavceff [2022] SASCA 123.
If no error is established, then permission to appeal would be refused. If error has been established, then the offender has not been sentenced according to law. Before resentencing an appellant, the court must consider whether permission to appeal should be granted. An appellate court’s determination that a sentence is manifestly inadequate does not, of itself, justify permission to appeal. The question of whether the Crown should be granted permission to appeal involves issues ranging beyond those involved in the merits of the appeal.[9] The question of double jeopardy must be considered.
[9] R v Butler(a pseudonym) [2022] SASCA 112 at [72] (per David JA and Mazza AJA).
The expression ‘double jeopardy’ is not always used with a single meaning. It is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.
In Pearce v The Queen, McHugh, Hayne and Callinan JJ observed that:[10]
If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v The United States.
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
(Footnotes omitted)
[10] (1998) 194 CLR 610 at [10].
Although those observations were not made in the context of an appeal against sentence, they nevertheless clearly applied to such an appeal.[11] When used in the context of sentencing, the principle of double jeopardy encompasses the element of distress and anxiety which a respondent suffers from being exposed to the possibility of a more severe sentence.
[11] R v JW [2010] NSWCCA 49 at [58].
The application of the “rare and exceptional” principle reflects the operation of the double jeopardy principle when a court considers the question of whether the prosecution should be granted permission to appeal.
While it is well established that on a prosecution appeal against sentence the “rare and exceptional” principle must be rigorously applied, there has been little judicial discussion about how the rarity aspect can be deployed as a sentencing principle. The legislature has specifically provided for a prosecution appeal against sentence. It is the Director of Public Prosecutions who determines whether to bring an appeal in any particular case; the court’s obligation is to decide it. The expression “rare” cannot be relevant to, nor interfere with, the prosecutorial discretion as to when an appeal against sentence should be pursued. “Rare”, in the context of a prosecution appeal against sentence, refers to the exceptional nature of granting permission on a prosecution appeal.[12]
[12] R v JW [2010] NSWCCA 49.
As Doyle JA in R v Yaroslavceff observed:[13]
The phrase ‘rare and exceptional’ does not direct attention to the number or proportion of Crown appeals in which the appellate court’s intervention might be appropriate, for these are matters which depend upon the sentencing practices of first instances judges, and the number and nature of the appeals brought by the Director. Rather, it requires a qualitative assessment. It directs attention to the nature of the error that is required to justify intervention. In this way, it is intended to distinguish the circumstances in which it might be appropriate to intervene to correct a manifestly inadequate sentence in a Crown appeal from the circumstances in which it might be appropriate to intervene to correct a manifestly excessive sentence in a defence appeal.
[13] R v Yaroslavceff [2022] SASCA 123 at [71] (per Doyle JA).
I agree with the observation of Doyle JA that the “rare and exceptional” principle directs attention to nature of the error required to justify intervention.
Whether to grant the prosecution permission to appeal against a sentence involves a balancing exercise. The prosecution will be granted permission to appeal if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’.
However, as King CJ in R v Drewett observed,[14] “even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal.” The principle of double jeopardy means that both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate.
[14] R v Drewett (1983) 35 SASR 344, 345.
To put that another way, the court must be persuaded that the public interest in maintaining appropriate sentencing standards justifies appellate intervention, notwithstanding the hardship to a defendant associated with the principle of double jeopardy; namely, being twice vexed by the repeated exercise of the State’s coercive power. It is during this balancing exercise that consideration must be given to whether it is a “rare and exceptional” case.[15]
[15] R v Buttigieg [2020] SASCFC 38; R v McIntyre (2020) 138 SASR 17; R v Yaroslavceff [2022] SASCA 123 at [72] (per Doyle JA).
The principle of double jeopardy has particular significance where, as is the case here, the original sentence did not involve the imposition of an immediate term of imprisonment. In these circumstances, an appellate court should be reluctant to reverse the decision and impose a custodial sentence.[16] To do so may be to produce an injustice.[17] As King CJ observed in R v Hicks:[18] “When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.”
[16] R v M, H (2007) 168 A Crim R 557 at [18].
[17] R v Kong (2013) 115 SASR 425 at [102]; R v Butler (a pseudonym) [2022] SASCA 112 at [73].
[18] (1987) 45 SASR 270 at 273.
There may be circumstances which will produce an injustice if a prosecution appeal is allowed, even in a case in which the sentence is erroneously lenient. The factors relevant to this issue include the respondent’s personal circumstances, progress towards rehabilitation, and the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild their life. To release a person to a non-custodial penalty but later reverse it and impose a custodial sentence may produce an injustice. In some circumstances, this would be too high a cost.[19]
[19] R v Kong (2013) 115 SASR 425 at [102][104] (per Kourakis CJ, Sulan and David JJ); Green v The Queen (2011) 244 CLR 462 at [2] (per French CJ, Crennan and Kiefel JJ); R v Butler [2022] SASCA 112 at [73] (per David JA and Mazza AJA).
For the reasons that follow, this case can be decided on the sole question of whether permission to appeal should be granted. It is therefore unnecessary to consider the exercise of any ‘residual discretion’, if available, to dismiss the appeal.
Aggravated robbery: applicable standard of penalty
The general standard of six to eight years for the offence of armed robbery[20] or aggravated robbery has been the repeated subject of decisions by this Court and the Court of Criminal Appeal, including R v Place (“Place”).[21] It is necessary to turn briefly to a discussion of those authorities.
[20] The offence of armed robbery was governed by s 158 of the Criminal Law Consolidation Act 1935. Section 158 was repealed and replaced with s 137 of the Criminal Law Consolidation Act 1935 by Schedule 26/2002 s 4 (5 July 2003).
[21] (2002) 81 SASR 395.
In Place, the Court of Criminal Appeal confirmed that the standard of penalty remained six to eight years, albeit emphasised the need to consider the individual circumstances of the offence and the offender in determining the applicability of that standard. Their Honours observed:[22]
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment.
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.
[22] R v Place [2002] SASC 101 at [100]–[101] (per Doyle CJ, Prior, Lander, Martin and Gray JJ).
Their Honours turned to consider the decision of R vNewton (“Newton”), in which the appellant was sentenced to a term of three years and six months imprisonment for one count of armed robbery. The Court emphasised that rather than referring to armed robbery as occupying a spectrum, with planned large-scale armed hold-up of a bank at one end and “street offences” committed by a robber brandishing some small implement and making off with a small amount of cash at the other,[23] the offending to which the standard applies can only be described in the broad terms set out above. Their Honours proceeded to consider the circumstances of Newton in that context:[24]
The circumstances of the armed robbery in Newton involved a vulnerable victim who was no less vulnerable than attendants at premises such as pharmacies and service stations. The victim was subjected to a threat with a dangerous weapon. From the perspective of the victim, the use of the syringe involved a threat of violence that was no less dangerous than a threat with a knife. General deterrence and the need to protect the public were of particular importance. The offender was a heroin addict who was desperate for money in order to purchase heroin. In our opinion, the type of offending in Newton should not be regarded as intrinsically less serious than the broadly described type of offending in respect of which the standard of penalty has been applied by previous decisions of this Court.
[23] R v Newton [2002] SASC 36 at [46].
[24] R v Place [2002] SASC 101 at [106].
Further guidance was provided by this Court in Soun v The Queen; R v Soun (“Soun”).[25] In Soun, the applicant was sentenced to four years, six months and 11 days imprisonment with a non-parole period of two years and eight months for one count of aggravated robbery. The applicant appealed on the ground that the sentence was manifestly excessive. The Crown cross-appealed on the ground that the sentence was manifestly inadequate. The circumstances in Soun involved the applicant stealing the handbag of a 90-year-old woman and, in the course of that theft, pulling away the victim’s walking frame and causing her to fall. The applicant fled, dropping the handbag into a bag held by a co-offender.
[25] Soun v The Queen; R v Soun [2021] SASCA 119.
The Court referenced the six to eight year standard as identified in Place, noting the range was “not inflexible” and depended upon the “range of personal and objective circumstances associated with the offence and the offender”.[26] The Court considered the importance of maintaining a substantial difference between sentences for ‘armed’ robberies and basic offences of robbery,[27] and noted the comments of Kourakis CJ (with whom Kelly and Blue JJ agreed) in R v Brant (“Brant”), as to the appropriate starting point for an offence of robbery without the use of a weapon:[28]
In Gannon, after reviewing the cases of R v Blackmore, R v Van Huizen, R v Betts and R v McGlynn, I concluded that the starting point for robberies from retail premises or from individuals, either without violence or with some violence, but not involving a weapon, was generally four years.
[26] Soun v The Queen; R v Soun [2021] SASCA 119 at [16] citing R v Harradine & Harradine [2012] SASCFC 103 at [22].
[27] Soun v The Queen; R v Soun [2021] SASCA 119 at [17] citing R v Gannon (2012) 113 SASR 1 at [33].
[28] [2018] SASCFC 72 at [30].
Having considered the need to protect the community, particularly the elderly, on the one hand, and the circumstances personal to the offender (including a heroin addiction and participation in an arranged marriage at age 18) on the other, the Court found that that the starting point of just under five years was neither manifestly excessive nor inadequate.
Contentions of the parties
The Director submitted that the offending in the present case fell within the broad description of the type of offences to which the Place standard applies. The robbery was premeditated; the victim was lured to the respondent’s address under the pretence of a drug sale. The respondent took steps to arm himself prior to the offending. Mr Smart was not only threatened with the knife but stabbed. The Director contended that Mr Smart was no less vulnerable than the service station or pharmacy attendant discussed in Place. Further, the fact that the robbery occurred during a drug transaction was irrelevant to sentencing; Mr Smart’s culpability is appropriately accounted for by the prosecutorial discretion to charge him with attempting to traffic drugs or other like determination. The Director submitted that general deterrence and the need to protect the public were of significant importance. Personal deterrence, given Dr Begg’s assessment regarding the offender’s immaturity and the fact that the respondent committed the offending whilst subject to supervised bail, was also important.
The Director contrasted the four-year starting point identified in Brant and considered in Soun against the present starting point to further reiterate the extent of the departure from the applicable standard.
As to the order that the sentence be served on home detention, the Director referred to the comments of Doyle J in R v Dell:[29]
The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order — even if it will assist in the rehabilitation of the defendant and provide sufficient personal deterrence — does not inappropriately undermine achievement of the objectives of punishment and general deterrence. The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court’s concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention.
It is notable that the legislature has not chosen to circumscribe the Courts’ discretion by proscribing a home detention order in respect of any particular category of offence, or in respect of sentences of imprisonment beyond a particular period of length. However, this does not mean that home detention orders will not generally be inappropriate in respect of many types of offences, and in respect of defendants the subject of lengthy terms of imprisonment. To the contrary, there will be many cases in which the nature of the offending is such that the need to ensure achievement of the broader objectives of sentencing will for practical purposes foreclose any exercise of the discretion in favour of home detention. The length of the head sentence that has been imposed will often provide some indication of the weight that it is necessary to attach to the objectives I have mentioned.
[29] (2016) 126 SASR 571 at [57]–[58].
Given the need to ensure the achievement of the broader objectives of sentencing in the present case, the Director submitted that any exercise of the discretion in favour of home detention would affect public confidence in the administration of justice.
As to the question of permission, the Director contended that the sentence was so unreasonable and unjust that appellate intervention is required to protect the public confidence in the administration of justice.
Counsel for the respondent contended that the respondent’s offending did not warrant the application of the standard identified in Place and thus the sentence was not outside the reasonable range of sentences to be imposed for offending of this type. The respondent submitted that the features of premeditation and use of a weapon, could not, of themselves, draw the offending within the ambit of the type captured by Place and that the motive for the offending, namely “need rather than greed”, acted to mitigate those features and limit any suggested parallels to the offending described in Place. Whilst the respondent conceded that drug dealers are not precluded from the protection of the law by virtue of their participation in criminal activity, it was submitted that the context of criminality in which the offending occurred was nevertheless an appropriate factor for the sentencing Judge’s consideration. The respondent submitted that while the criminal circumstances did not mitigate the offending, it also could not be said that they “lifted the offending into the same bracket” as the type of offending discussed in Place.
The respondent submitted that the sentencing Judge did not err in ordering that the penalty be served on home detention. While accepting that the pre-eminent consideration was the protection of the community, counsel emphasised that the respondent’s youth, immaturity and limited criminal history that had run concurrently with psychiatric difficulties, indicated that home detention would best achieve the primary sentencing consideration via the increased opportunity for the respondent to correct his criminogenic factors through rehabilitation and medical treatment.
Discussion
The maximum penalty for aggravated robbery is life imprisonment. For a basic offence, the maximum penalty is 15 years.[30] The maximum penalties reflect the seriousness with which parliament views this type of offending.
[30] Criminal Law Consolidation Act1935 (SA) s 137(1).
The sentencing discretion is broad. The sentence ultimately arrived at must achieve the protection of the safety of the community as its primary purpose. The troublesome nature of the sentencing discretion arises from the unavoidable difficulty in attributing weight to the various factors to which the court must have regard when determining sentence. The discretionary nature of the task means that the process does not lead to a single correct answer. Factors bearing on the determination of a sentence frequently pull in different directions. The extent to which any factor bears upon the case involves an evaluative determination. Administration of the criminal law involves individualised justice. It is the obligation of the court to balance the incommensurable factors and arrive at a just sentence which, in South Australia, ultimately reflects the primary purpose, namely the protection of the safety of the community.[31]
[31] R v Rendic [2021] SASCA 23 at [6] (per Lovell JA, Kelly P agreeing); [40] (per Bleby JA).
The principles involved in sentencing an offender for an offence of aggravated robbery are well settled. From the sentencing Judge’s remarks, I am unable to discern any specific reason for the significant departure from the applicable standard. I agree with the Director’s submission that the fact that the robbery and stabbing occurred during a drug deal does not diminish the respondent’s criminal responsibility.
In combination, the features referred to by the Director, including the element of pre-meditation, the nature and use of the weapon and the harm sustained to the victim, demonstrate the serious nature of the respondent’s offending. In the circumstances, I am satisfied that there is a significant disparity between the sentence imposed and what was necessary to achieve the purposes of the sentencing exercise. There must have been some misapplication of principle, even though the error is not apparent from the remarks. The notional starting point of two years and six months imprisonment is outside, considerably, the range of available sentences. A starting point of no less than five years imprisonment was appropriate. The sentence imposed is manifestly inadequate.
The sentencing Judge was not statutorily precluded from considering the imposition of a home detention order. However, such an order is generally not appropriate for an offence of aggravated robbery. The respondent’s personal circumstances attract considerable sympathy. However, the serious nature of the offending precluded the respondent from serving his sentence on home detention.
Permission
Having formed the view that the sentence imposed was manifestly inadequate, it remains to be determined whether this is an appropriate case in which to grant permission to appeal. The fact that the sentence imposed below is manifestly inadequate is a relevant consideration in favour of intervention, but does not, of itself, justify the granting of permission to appeal.[32]
[32] R v Yaroslavceff [2022] SASCA 123 at [69] (per Doyle JA); R v Drewett (1983) 35 SASR 344, 345 (per King CJ).
There is a tension between the public expectation that an offender be sentenced appropriately for his conduct and the principle of double jeopardy.
As discussed earlier in these reasons, the respondent’s offending was very serious. The offending was planned as the respondent had purchased a knife that morning. When the victim got out of his vehicle and went to shake the respondent’s hand, the respondent was immediately violent. The respondent inflicted a serious injury on the victim. The respondent was not a first offender having previously been convicted of offences of violence. At the time of the subject offending, the respondent was on bail.
The respondent has had the benefit of home detention since 30 August 2022; he has served almost the entirety of his five month and 28-day non-parole period. He is still a young man without an entrenched history of offending.
Dr Begg’s report clearly outlines the difficulties the respondent faced in his formative years. The respondent’s parents were involved in an acrimonious divorce when he was 10 years old and his schooling was interrupted. When he was in Year 10 his father made him change schools. The respondent’s behaviour deteriorated and his father changed his school again and put him in a share house. At this stage the respondent began using drugs. After an altercation with his father, he became homeless, and his drug addiction worsened. In March 2020 the respondent presented at the Royal Adelaide Hospital suffering from psychosis. In May 2020, the respondent was admitted to a psychiatric ward at the Flinders Medical Centre again suffering from psychosis. He remained in hospital for five days. Shortly after his release, he attempted suicide. The respondent has a history of self-harming.
Dr Begg diagnosed the respondent as suffering from a Mixed Personality Disorder with features of Anti-Social Personality Disorder. Dr Begg considered that, upon his release, the respondent needed a structured environment and psychological treatment. Dr Begg considered that the respondent would benefit from drug and alcohol counselling.
Prior to the offending, the respondent had not sought psychological assistance. Since his release from custody, he has commenced cognitive behavioural therapy (“CBT”) with a CBT therapist who has subsequently referred him to a psychologist for further treatment. The respondent has also completed a drug and alcohol program. He continues to live with his mother and receive her support. There is no suggestion that he has not complied with any of the home detention conditions. The respondent has undertaken all of Dr Begg’s recommendations. Combined, these factors demonstrate his continued efforts toward rehabilitation. The respondent has served approximately six months in custody for the subject offending. A relevant personal circumstance which the sentencing Judge had regard to, correctly in my view, is that the respondent had already served six months in custody for unrelated offending. That is, while the sentencing Judge correctly accounted for the time in custody for this offending, she noted that the respondent had actually spent the previous 12 months in custody. The respondent’s response to his time in custody has been to, on his release, actively attempt rehabilitation.
As discussed earlier in these reasons, the sentence imposed is so manifestly inadequate as to amount to an error. However, the purpose of a prosecution appeal is not simply to overturn an erroneous sentence and increase the penalty. Wider purposes of a prosecution appeal include achieving consistency in sentencing and the establishment of sentencing principles.
The decision as to whether to grant the prosecution permission to appeal is finely balanced. The offending was serious, and the sentence imposed clearly manifestly inadequate. It is not necessary to grant permission in order to establish an adequate standard of punishment. Previous decisions have done that. All that has happened is that the sentencing Judge has departed from those decisions. The granting of permission in this case turns on the question of whether the departure from what are the adequate standards was so significant as to require correction. When considering that proposition, double jeopardy and the rare and exceptional principle require consideration.
In my view, the wider purposes of the prosecution appeal may be achieved in this case by the finding of manifest inadequacy and the reasons which establish the sentence imposed was wrong and why. To reverse the decision of the sentencing Judge and impose an immediate custodial sentence would be to cancel the respondent’s right to be at liberty when he has clearly abided by what the Court has already required of him.
I consider that to grant permission to appeal would come at too high a cost in terms of justice to the respondent. I do not consider that the public policy considerations outweigh the significant cost of the respondent being twice vexed by the coercive power of the State. This is not a “rare and exceptional” case that warrants granting the prosecution permission to appeal the sentence.
Order
I would refuse permission to appeal.
BLEBY AND DAVID JJA: The factual circumstances relevant to this application by the Director of Public Prosecutions for permission to appeal against sentence are outlined in the reasons of Lovell JA.
Following a guilty plea, the respondent was convicted of the offence of aggravated robbery for which the maximum penalty is life imprisonment. The sentencing judge commenced with a notional starting point of two years, six months imprisonment. He was entitled to discount of up to 15 per cent for his guilty plea, which the judge afforded him in full, reducing the sentence to two years, one month and 16 days. The judge fixed a non-parole period of one year and one month. The head sentence and non-parole period were further reduced by six months and two days on account of time served to one year, seven months and 14 days with a non-parole period of five months and 28 days. That sentence was ordered to be served on home detention with conditions.
We agree with Lovell JA that the sentence imposed was manifestly inadequate in terms of the length of the head sentence and the decision to order the sentence be served on home detention.
For the reasons given by his Honour, the notional starting point of two years and six months’ imprisonment was considerably outside the permissible range of available sentences. The non-parole period of one year and one month, before allowing for time spent in custody, was low as a proportion of that sentence. We would not necessarily consider it to be disproportionately low, given the respondent’s personal circumstances as set out by Lovell JA; the difficulty lies in the starting point of the head sentence.
We also agree with Lovell JA that the serious nature of the offending precluded the respondent from serving his sentence on home detention, notwithstanding the personal circumstances of the respondent.
The offending
The offending was a serious example of aggravated robbery. The respondent had organised to purchase a significant amount of cannabis from the victim, and to meet at the respondent’s home. Earlier that day, the respondent purchased a knife for $300 from a fishing retail store. When the victim arrived at the respondent’s home, he came outside armed with the knife. As the victim reached out to shake his hand, the respondent repeatedly moved his arm in a stabbing motion to the victim’s torso. The victim attempted to defend himself by putting out his hands and running backwards while the respondent continued to advance, trying to stab him. The victim fell to the ground and the respondent continued to stab the victim while demanding money from him. The victim responded by saying that he did not have any money, but that there was cannabis in the car. The respondent took the cannabis and left the victim incapacitated in the street. The victim heard the respondent laughing as he left.
It is evident from this brief outline of the factual circumstances of the offending that it was pre-meditated. The respondent armed himself with a knife in preparation for the robbery, and his use of violence in effecting the robbery was unprovoked and sustained. He also displayed a callousness in leaving the respondent seriously injured and incapacitated in the street while he fled with the cannabis.
The victim suffered serious injuries as a result of the robbery. He sustained a six-centimetre stab wound to his chest which created a haematoma beneath the skin. He required surgery to treat the stab wound and evacuate the haematoma. He was left with an “ugly scar”. The offending also had a bad psychological effect on the victim rendering him unable to work for several months and apprehensive in social settings.
The respondent’s explanation for his offending was “to rob his victim of his cannabis so that he could have some for his own use but to also sell a lot of it because he needed money”. He also told the author of a home detention report that that he thought he would not get caught as he did not think the victim would “give him up” because he was dealing in drugs. He said he was still mad at the victim for giving him up. The respondent was described by the author of the home detention report as displaying “limited remorse for his victim”.
The respondent was not a first offender. At the time of this offending, he was on a supervised bail agreement for other offences including carrying an offensive weapon, namely a machete for which he was later convicted and sentenced to a term of imprisonment.
Bearing in mind the pre-meditated nature of the offending, the use of a recently purchased knife to affect the robbery, and the significant injury to the victim, a starting point significantly higher than that adopted by the judge was required. The fact that the victim was engaged in the unlawful activity of selling cannabis at the time of the commission of the offence did not detract from the need for the sentencing exercise to achieve the purposes of general deterrence and the protection of the community.
While the respondent is still a young man, and his foray into crime is of recent origin, he was subject to a supervised bail agreement for other offences at the time of the offending. He had also displayed limited insight into his offending and limited empathy for the victim. For those reasons, the sentence needed to reflect principles of personal deterrence.
Given the guidance provided by R v Place,[33] we agree with Lovell JA that a starting point of not lower than five years was appropriate.
[33] [2002] SASC 101 at [100]–[101] (per Doyle CJ, Prior, Lander, Martin and Gray JJ).
Permission to appeal
We are grateful for Lovell JA’s considered exposition of the principles attending the question of whether to grant the Director permission to appeal. It is well established that manifest inadequacy in the sentence does not, of itself, warrant a grant of permission to appeal.
In R v Buttgieg, this Court explained the principles governing when an appeal court will intervene on a Crown appeal against sentence:[34]
A Crown appeal against the adequacy of a sentence should be approached with great care, and the ‘rare and exceptional’ test should be rigorously applied. However, the Crown will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’.[35] Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.[36]
(Footnotes in original)
[34] [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing).
[35] R v Nemer (2003) 87 SASR 168 at 172 [24]; R v Harkin [2011] SASCFC 24 at [19].
[36] R v McIntosh [2017] SASCFC 87 at [16].
Recently, in R v Yaroslavceff, Doyle JA considered the notion of a “rare and exceptional case”:[37]
The phrase ‘rare and exceptional’ does not direct attention to the number or proportion of Crown appeals in which the appellate court’s intervention might be appropriate, for these are matters which depend upon the sentencing practices of first instances judges, and the number and nature of the appeals brought by the Director. Rather, it requires a qualitative assessment. It directs attention to the nature of the error that is required to justify intervention. In this way, it is intended to distinguish the circumstances in which it might be appropriate to intervene to correct a manifestly inadequate sentence in a Crown appeal from the circumstances in which it might be appropriate to intervene to correct a manifestly excessive sentence in a defence appeal.
The line between a sentence which is ‘merely’ manifestly inadequate, and a sentence which is so far below the appropriate standard as to warrant a grant of permission in a Crown appeal is not a bright one. It involves questions of degree, and, in a case such as the present, requires a balancing of the public interest in maintaining appropriate sentencing standards against the hardship to a defendant associated with being twice vexed.
(Footnotes omitted)
[37] [2022] SASCA 123 at [71]–[72].
In determining whether to grant permission to appeal, it is necessary to consider whether the public interest in maintaining appropriate sentencing standards is outweighed by the principles of double jeopardy and the respondent being twice vexed by an appeal court. The factors relevant to this issue include the harshness of sentencing a person to an immediate term of imprisonment when they have remained in the community (or on home detention) and undertaken steps towards their rehabilitation.
In the present case, the respondent was arrested on 4 September 2021, the day of the offending, and taken into custody. He was also in custody on unrelated matters, the sentence for which expired on 26 February 2022. He was sentenced and released to serve the period of imprisonment on home detention, on 30 August 2022. This Court heard the application for permission to appeal on 6 February 2023. There has been no delay in bringing the appeal.[38] By the same token, he has had the benefit of almost six months on home detention. He has commenced cognitive behavioural therapy, received further psychological assistance and completed a drug and alcohol program. He appears to be in a stable environment with his mother.
[38] Cf. R v Butler [2022] SASCA 112 at [5] (Lovell JA, dissenting).
We agree that there are considerations that speak against a grant of permission in this case, as identified by Lovell JA. There are a number of factors in the respondent’s personal circumstances that reflect the observations by the majority in R v Butler as to the matters in favour of applying the protection of the common law principle of double jeopardy:[39]
The common law principle of double jeopardy continues to apply in this State to an application by the DPP for permission to appeal. As was recognised in R v Kong,[40] there may be circumstances which will produce an injustice if a Crown appeal is allowed even in a case in which the sentence is erroneously lenient.[41] The factors relevant to this issue include the respondent’s personal circumstances, progress towards rehabilitation, and the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild their life. These are just some of the relevant considerations. To release a person to a non-custodial penalty but later reverse it and impose a custodial sentence may produce an injustice.[42] In some circumstances, this would be too high a cost.[43]
(Footnotes in original)
[39] [2022] SASCA 112 at [73] (David JA and Mazza AJA).
[40] Rv Kong (2013) 115 SASR 425.
[41] See Rv Kong (2013) 115 SASR 425, [102] (Kourakis CJ, Sulan and David JJ) and Green v The Queen (2011) 244 CLR 462, [2] (French CJ, Crennan and Kiefel JJ).
[42] R v Jones [2022] SASCA 105, [51] (Lovell and David JJA, Mazza AJA).
[43] R v Kong (2013) 115 SASR 425, [104] (Kourakis CJ, Sulan and David JJ).
As with the majority approach in R v Butler, however, there are strong public policy considerations pointing to the need for this Court to intervene. As discussed above, the offending was premeditated. The respondent purchased a knife in anticipation. The victim sustained a serious stab wound and has endured considerable mental and physical suffering as a result. The respondent was subject to supervised bail agreements at the time. His previous offending, while not amounting to an entrenched pattern, included two counts concerning possessing or carrying an offensive weapon (a machete), several counts of failing to comply with a bail agreement and assaulting a worker. This was over a period of months from the beginning of 2021, leading up to the subject offending. The later group of offences resulted in a head sentence of five months and 22 days’ imprisonment from 4 September 2021.
There are also strong considerations against twice vexing the respondent. We have not overlooked that to set aside the sentence and order that he serve an immediate term of imprisonment will have harsh consequences for the respondent. However, in our view, intervention is required to maintain appropriate sentencing standards and ensure public confidence in the administration of justice. The length of the sentence and the order that it be served on home detention amounted to an extreme departure from the appropriate standard, having regard to the seriousness of the offending.
We would grant permission to appeal, allow the appeal and resentence the appellant.
Resentencing
Having regard to the matters set out in Lovell JA’s summary of the offending, in particular the respondent’s young age, rehabilitative efforts, and personal circumstances, we would sentence the respondent to a head sentence of five years. We would reduce that by 15 per cent on account of the respondent’s guilty plea, resulting in a head sentence of four years and three months. Having regard to his personal circumstances, we would impose a low non-parole period of two years and three months. We would then give the credit applied by the judge for time spent in custody of six months and two days.
We would also give the respondent full credit for the period of imprisonment of six months and four days that he has served on home detention. Whether it was required that he be given full credit for this period was raised at the hearing, but not the subject of full argument. It may be necessary to visit this question in future. Section 71(1) of the Sentencing Act 2017 (SA) makes it clear that this was a period of imprisonment. To give less than full credit for this period, albeit that it was served on home detention, raises the prospect of requiring the respondent to serve a period of imprisonment twice. Should there be a discretion to give less than full credit for this period, which we do not decide, we decline to exercise it.
The resulting head sentence is three years, two months and 24 days. The non-parole period is one year, two months and 24 days. We decline to order that the sentence be suspended or that the sentence be served on home detention. The sentence is to commence from the date the respondent is taken into custody.
Our orders are as follows:
1. Permission to appeal is granted.
2.The appeal is allowed.
3.The sentence is set aside.
4.The respondent is resentenced to a head sentence of three years, two months and 24 days, with a non-parole period of one year, two months and 24 days. The sentence is to commence from the date the respondent is taken into custody.
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