R v Koch - [2015] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KOCH
[2015] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)
27 March 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
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 - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY
Crown application for permission to appeal against sentence. The defendant (respondent) pleaded guilty to offences of aggravated serious criminal trespass in a place of residence, causing serious harm with intent to cause serious harm and using a motor vehicle without consent. The defendant was sentenced in the District Court to imprisonment for four years and six months with a non-parole period of two years and three months.
Whether permission to appeal against sentence should be granted. Whether the sentence imposed was manifestly inadequate.
Held (Parker J; Kourakis CJ and Bampton J agreeing):
Permission to appeal granted and appeal upheld. The sentence imposed was disproportionate to the gravity of the defendant’s conduct and failed to adequately recognise the very high degree of brutality involved. General deterrence is a very important consideration in sentencing for offences of violence committed in the course of domestic disputes. A sentence of imprisonment for six years and eight months and concurrent sentence of imprisonment for three years, with a non-parole period of four years and two months, should be imposed.
Criminal Law Consolidation Act 1935 s 170(1)(b), s 23(1)(a), s 86A, s 340; Criminal Law (Sentencing) Act 1988 s 18A, s10C; Road Traffic Act 1961 s 169B, referred to.
R v Parenzee (2007) 101 SASR 456; R v Milton [2009] SASC 44; House v The King (1936) 55 CLR 499; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; Comcare v PVYW (2013) 250 CLR 246; R v Nemer (2003) 87 SASR 168; R v Payne (2004) 89 SASR 49; Griffiths v The Queen (1977) 137 CLR 293; DPP (Vic) v Bright (2006) 163 A Crim R 538; Malvaso v The Queen (1989) 168 CLR 227; R v Abdulla (2005) 93 SASR 208; R v Kong (2013) 115 SASR 425; Hili v The Queen (2010) 242 CLR 520; R v Siozios (2004) 236 LSJS 88; R v McPartland (2014) 120 SASR 69; R v Shannon (1979) 21 SASR 442, considered.

R v KOCH
[2015] SASCFC 31
Court of Criminal Appeal: Kourakis CJ, Bampton and Parker JJ

KOURAKIS CJ: I would allow the appeal for the reasons given by Parker J.
BAMPTON J: I would allow the appeal. I agree with the reasons of Parker J and the orders he proposes.
PARKER J: This is an application by the Director of Public Prosecutions for permission to appeal against sentence. For the reasons which follow, I would grant permission to appeal and uphold the appeal.
Background
After pleading guilty to the offences of aggravated serious criminal trespass in a place of residence,[1] causing serious harm with intent to cause serious harm[2] and using a motor vehicle without consent[3] the defendant (respondent) was sentenced to imprisonment for four years and six months with a non-parole period of two years and three months. While he was also subject to the mandatory disqualification from holding a driver’s licence for twelve months, that is not in issue.
[1] Section 170(1)(b) of the Criminal Law Consolidation Act 1935.
[2] Section 23 (1)(a) of the Criminal Law Consolidation Act 1935.
[3] Section 86A(1) and (2) of the Criminal Law Consolidation Act 1935.
The offences occurred at Mount Gambier at about midnight on the night of 10 and 11 August 2013. The defendant was then aged 38 years. The victim was the mother of the defendant’s former partner. She was aged 52 years.
The relationship between the defendant and the victim’s daughter had ended about five to six months prior to the offences. On the evening of 10 August 2013 the victim’s daughter had gone to a restaurant and a hotel in Mount Gambier with friends. The victim was babysitting her daughter’s two children at the latter’s home. They were girls then aged 10 months and seven years respectively. The defendant is the father of the younger girl but not that of the older.
The defendant attended at the hotel where his ex-partner was present with her friends. He may have been affected to some extent by the alcohol and cannabis that he had previously consumed. He approached her on the dance floor. That resulted in a verbal altercation and some pushing and shoving. He left the hotel before the bouncers could intervene.
The defendant then went to his former partner’s home. He stated to police that his intention was to wait until she returned. He entered by the back door and found the victim reading. The defendant questioned her about his relationship with her daughter. She was dismissive of his grievances and he became enraged.
The victim attempted to push past the defendant through a doorway. He restrained her and she accused him of assault. He then pushed her into the door frame which caused her to fall to the floor on all fours. While she was in that position he punched her about four or five times to the side of the head with a clenched fist. At that point the defendant noticed blood on his fist.
The defendant said to police that after a pause he had then kicked the victim to the side of the head so to stop her “moaning and whingeing, like she was kind of howling”. He accepted that she was calling out in pain. He admitted to police that his intention was to kick her unconscious because he was concerned about other people hearing the noise that she was making.
After the assault the victim lay unconscious on the floor and breathing heavily. The defendant did not provide any assistance to her.
The defendant then took his daughter and drove from the house in his former partner’s car. He admitted that he had no right to use her car. He took items required to care for his daughter. He drove to various locations and then hid in an abandoned house. At about 7pm on the evening of 11 August 2013 he surrendered himself to the police at Mount Gambier. His child was not harmed.
The defendant’s former partner returned to her home at about 3 am and found her mother lying on the floor close to the front door. She was confused and semi-conscious.
The victim was initially taken by ambulance to the Mount Gambier Hospital where she was assessed as having an acute subdural haematoma. Following intubation she was evacuated to the Flinders Medical Centre for surgery. She was given an emergency craniotomy and a tracheostomy and a peg inserted for feeding. The treating neurosurgeon stated that if she had not been provided with emergency treatment she could potentially have been left in a severe vegetative state, suffered profound morbidity or death. After treatment at the Flinders Medical Centre the victim was later transferred to the Hampstead Rehabilitation Centre. She was not discharged from Hampstead until some four months after the assault.
The medical report prepared prior to sentencing indicated that the victim continued to suffer from persistent mild left upper and lower limb neurological deficits, right visual field loss, generally poor cognitive functioning, poor memory and concentration with lowered mood and anxiety. At that time she was unable to function independently. It was likely that her impaired memory and concentration and generally reduced cognitive functioning would remain in the long term although there would be small incremental improvement over the following six to twelve months. Her left sided neurological deficit had improved and was now only mild. Her visual field deficit was likely to persist indefinitely.
The defendant’s personal circumstances
The defendant was aged 38 years at the time of the offences. He had been convicted in 1998 and again in 2000 on charges of driving with excess blood alcohol. A charge of damaging property was finalised in 1995 without a conviction being recorded. He had completed an apprenticeship as a motor mechanic and had subsequently worked as a fencer for some thirteen years. At the time of the offences he was working as a trades assistant.
A psychiatric report provided to the sentencing judge indicated that the defendant did not suffer from a psychiatric disorder. Several supportive character references were also provided. They referred to his on and off field leadership role at a local football club and the support and assistance he had provided to neighbours and to his own father who suffers from a degenerative disease. He had also written to the court expressing remorse for his actions.
Sentence
The sentencing judge said that had it not been for the defendant’s plea of guilty in relation to the aggravated serious trespass entered at the arraignment and the guilty pleas taken at the Magistrates Court on the other two counts he would have imposed a sentence of imprisonment for six years. After taking into account the guilty pleas he sentenced the defendant to imprisonment for four years and six months with a non-parole period of two years and three months. The judge imposed a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988.
The judge ordered that the disqualification period of 12 months from holding or obtaining a driver's licence made mandatory by s 86A(2) of the Criminal Law Consolidation Act 1935 was to commence from the date of the sentencing remarks. Section 169B of the Road Traffic Act 1961 provides that the period of disqualification is to be calculated on the basis that the period commenced upon the person’s release from imprisonment. Thus, the 12 months disqualification should have been ordered to run from the time the defendant is released from prison.
Consideration
The maximum sentence for the offence of aggravated serious criminal trespass in a place of residence is imprisonment for life while the offence of causing serious harm attracts a maximum penalty of twenty years imprisonment. The penalty provided for illegal use of a motor vehicle is imprisonment for two years with a mandatory licence disqualification of one year.
Permission to appeal
The Solicitor-General appeared as counsel for the DPP. He submitted that, broadly speaking, permission to appeal will be granted where it is reasonably arguable that the impugned sentence is infected by error.[4] Because the proposed appeal is from a discretionary sentencing decision, the error must be of the type identified in House v The King.[5]
[4] R v Parenzee [2007] SASC 316 at [22]; (2007) 101 SASR 456 at 461; R v Milton [2009] SASC 44 at [7].
[5] [1926] HCA 40; (1936) 55 CLR 499. See also Lacey v Attorney-General (Qld) [2011] HCA 10 [11] – [15]; (2011) 242 CLR 573 at 579 – 581.
While the authorities referred to by the Solicitor-General[6] dealt with the grant of permission to appeal against conviction, there is no reason to adopt a different approach in relation to permission to appeal against sentence. Of course, that observation is subject to the additional requirement that in the case of a Crown appeal against sentence the rare and exceptional circumstances test will apply.[7]
[6] R v Parenzee [2007] SASC 316; (2007) 101 SASR 456 and R v Milton [2009] SASC 44.
[7] See Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 303 (Brennan, Deane, Dawson and Gaudron JJ).
The Solicitor-General submitted, correctly in my opinion, that in addition to establishing an error of the type identified in House v The King, the court must be persuaded that there are public policy considerations that outweigh the public interest in protecting persons from having their liberty twice placed in jeopardy. That principle is often sought to be summarised by the statement that a Crown appeal against sentence will only be allowed in rare and exceptional circumstances.
Phrases used in judgments such as “rare and exceptional circumstances”[8] and “shock the public conscience”[9] may provide a convenient shorthand description of a wider principle. However, words used in a judgment cannot be applied as if they were enacted in a statute.[10] Care must always be taken to identify with precision the underlying principle that such aphorisms seek to summarise.
[8] Ibid at 299 [6].
[9] R v Osenkowski (1982) 30 SASR 212 at 212 – 213 (King CJ).
[10] Comcare v PVYW [2013] HCA 41 at [12] – [16]; (2013) 250 CLR 246 at 255 – 256 (French CJ, Hayne, Crennan and Kiefel JJ).
In R v Nemer[11] Doyle CJ explained the operation of the “rare and exceptional circumstances” test in Everett as follows:
23The High Court has determined that the court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case”: Everett v The Queen (1994) 181 CLR 295 at 299.
24The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”: see The Queen v Osenkowski (1982) 30 SASR 212 at 212-213 King CJ; Everett at 300. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[11] [2003] SASC 375; (2003) 87 SASR 168.
The principles expressed by Doyle CJ in Nemer were reiterated by the Court of Criminal Appeal (comprising five judges) in R v Payne[12] where the proper approach to Crown applications for permission to appeal against sentence was described as follows:
Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300; Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212-213.
[12] [2004] SASC 160 at [86]; (2004) 89 SASR 49 at 70 (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ).
The Everett principles reflect the reluctance of the common law to expose a defendant to double jeopardy by being sentenced on a second occasion for the same crime.[13] However, upon permission being granted, s 340 of the Criminal Law Consolidation Act 1935 requires the court to impose the sentence that “should have been imposed in the first instance”. Thus, the double jeopardy principle does not affect resentencing should the Court uphold the appeal.[14]
[13] DPP (Vic) v Bright [2006] VSCA 147 at [10]; (2006) 163 A Crim R 538 at 542 – 543; Malvaso v The Queen [1989] HCA 58 at [1]; (1989) 168 CLR 227 at 234 (Deane and McHugh JJ).
[14] R v Abdulla [2005] SASC 399; (2005) 93 SASR 208; R v Kong [2013] SASCFC 15; (2013) 115 SASR 425.
It is apparent that in order to obtain leave to appeal against sentence the Director must do more than satisfy the court that an error may have been made. The Director did not submit that it is necessary in the present case to grant permission for an appeal so as to establish or maintain sentencing principles or standards. Thus the question is whether permission should be granted because the sentence is so far below the appropriate range of sentence that it reflects an error of principle such that allowing the sentence to stand would shake public confidence in the administration of justice.
Defence submissions
Counsel for the defendant did not directly address the question of whether it was appropriate to grant permission for the Director to appeal against sentence. Counsel simply submitted that the sentence was not manifestly inadequate. While the period of imprisonment was less than some judges would have imposed, it was within the range of sentences reasonably available.
Counsel noted that the judge had had regard to the particular circumstances of the offending. Counsel emphasised that the assault was not premeditated and the defendant had gone to his ex-partner’s house intending to speak to her mother about their relationship. The victim was critical of the defendant and he considered that her remarks were not correct. At that point it became apparent to the defendant that his hopes for a resumption of the relationship with the victim’s daughter were misplaced and he became emotional. The defendant accepted that his actions in punching and kicking the victim were very serious and he should have sought help rather than leave her unconscious. However, he was angry and scared. He later surrendered voluntarily to the police. The interview with the police makes clear that he was manifestly contrite for his actions.
Counsel also noted that in imposing sentence the judge had taken into account the seriousness of the offending and the serious injuries inflicted upon the victim. The judge had also noted the respondent’s background and his prior good reputation amongst those who knew him. The judge had properly taken into account considerations of deterrence and punishment. The sentence of imprisonment imposed by the judge was adequate punishment given the circumstances. The judge had also given weight to the interests of the community in the sense that it would be better served by the defendant rejoining the community as soon as reasonable.
Was the sentence manifestly inadequate?
In Hili v The Queen[15] the High Court held that the NSW Court of Criminal Appeal had been wrong to hold that “manifest error is fundamentally intuitive”. However, the Court did approve the statement that manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”. The High Court went on to hold that “what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence”.
[15] [2010] HCA 45 at [60]; (2010) 242 CLR 520 at 539 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

The phrase “shock the public conscience” has frequently been used in support of a submission that a sentence is manifestly inadequate. As this Court noted in R v Siozios,[16] and also more recently in R v McPartland,[17] use of that phrase tends to obscure rather than illuminate the issues. The relevant question is whether the sentence is so far below the appropriate standard that if it is left standing it will shake public confidence in the administration of justice[18] or, to put the matter another way, is the sentence below the range that was reasonably available in the particular circumstances.[19]
[16] [2004] SASC 299 at [20]; (2004) 236 LSJS 88 at 89.
[17] [2014] SASCFC 84 at [22] – [29]; (2014) 120 SASR 69 at 81 – 83.
[18] R v Nemer at 172 [24].
[19] Hili v The Queen [2010] HCA 45 at [60; (2010) 242 CLR 520 at 539; R v McPartland [2014] SASCFC 84 at [15]; (2014) 120 SASR 69 at 77 – 78.
This Court held in R v McPartland 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”.[20] That observation might potentially be applicable to the present offences of aggravated serious criminal trespass in a place of residence and causing serious harm as those offences might encompass a wide range of criminal conduct. However, no submissions were made on that question and nor was the Court referred to any sentences that may possibly have been said to be comparable.
[20] Ibid at 79 [17].
The sentence
The attack by the defendant upon the victim was particularly brutal. The degree of force used in the attack is apparent from the serious injuries that she suffered. While she was aged 52 years at the time of the assault, the defendant described her to police as a “little old woman”. While there may have been some chronological imprecision, his description indicates the level of physical inequality between him and the victim.
The defendant conceded to police that he may have been holding the victim by the hair as he punched her four or five times to the head. That was consistent with the tuft of her hair found at the crime scene. The most brutal aspect of the defendant’s conduct was the final kick to the head to stop her moaning so that others would not hear her distress. He indicated to police that the kick was reasonably hard and a considered action so as to avoid detection.
The defendant did not seek any medical attention for the victim and left her lying on the floor unconscious with a seven year old child sleeping elsewhere in the house. He also acknowledged that the taking of his ex-partner’s car and the removal of his daughter from the care of her grandmother (which was not the subject of any charge) were actions intended to punish his ex-partner as a “stupid little revenge thing”.
There were only slight mitigating circumstances relevant to the defendant’s conduct. While his actions may be explained to some extent as arising from rage caused by the breakdown of his relationship and the negative response by the victim, these issues had been known to the defendant for some time.
The Director has submitted that the cruelty shown by the defendant should have three consequences. First, it was submitted that condign punishment must be paramount. Second, the degree of cruelty makes it difficult to extend him mercy. Third, his cruelty undermines the weight that might otherwise be given to his previous good character. I accept the correctness of those submissions.
The maximum penalties applicable for the offences of aggravated serious criminal trespass in a place of residence and causing serious harm are respectively life imprisonment or a sentence of twenty years. The brutality and callousness of the attack, the defendant’s intention to run the risk of causing greater than serious harm to the victim, the reasons for the offending, the relatively slight mitigating circumstances and the limited relevance of mercy combine to indicate that the notional starting point of six years was manifestly inadequate.
The sentence did not adequately punish the defendant for the gravity of his conduct nor was it adequate by way of general deterrence. The breakdown of a domestic relationship did not entitle him to launch a brutal assault on a defenceless woman many years his senior.
General deterrence is a very important consideration in sentencing for offences of violence committed in the course of domestic disputes. The sentence imposed fails to provide the level of general deterrence necessary to ensure public confidence in the enforcement of the criminal law in this fraught area. It is necessary to grant permission to appeal in the interests of maintaining proper sentencing standards for offences of this kind.
The non-parole period of two years and three months is precisely 50% of the head sentence. This was not a case that called for a lengthy period of supervision on parole. The likelihood of the defendant reoffending appears low. The primary considerations must be punishment and general deterrence. It can be inferred that there was an error of principle in setting the non-parole period.
The judge indicated that but for the guilty pleas he would have imposed a head sentence of six years. That was reduced to four years and six months, ie a discount of 25%.
Section 10C of the Criminal Law (Sentencing) Act 1988 provided for a discount of up to 30% in relation to the offences of causing serious harm and using a motor vehicle without consent where the plea of guilty was entered in the Magistrates Court. The maximum available discount in relation to the aggravated serious trespass, where the defendant did not enter a plea until arraignment, was 20%.
The defendant had no practicable option other than to plead guilty. That needed to be taken into account in assessing the discount to be given for his pleas.[21]
[21] R v Shannon (1979) 21 SASR 442 at 453 (King CJ).
The discount of 25% given by the sentencing judge exceeded the maximum available discount for the most serious offence of which the defendant was convicted. That fact combined with the inevitability of a guilty plea indicates that the discount of 25% was given in error. I would apply a discount of 20%.
Conclusion
I consider that the sentence imposed was disproportionate to the gravity of the defendant's conduct and failed to adequately recognise the very high degree of callousness and brutality involved. The sentence was so far below an appropriate standard that to allow it to stand would shake public confidence in the administration of justice.
I would grant permission to appeal and uphold the appeal by the Director. The most serious of the offences of which the appellant was convicted is the offence of causing serious harm with intent. On that offence, I would impose a sentence of eight years and four months. I would reduce that sentence by 20 per cent for the respondent’s plea of guilty to a sentence of six years and eight months. I would impose a concurrent sentence of three years on the offence of aggravated serious criminal trespass. I would fix a non-parole period of four years and two months backdated to 11 August 2013 when the defendant was taken into custody after surrendering to the police.
For the reasons I have given at paragraph 19 I consider that the 12 months disqualification should have been ordered to run from the time the defendant is released from prison. I would make an order to that effect.