R v Li

Case [2016] SASCFC 152 22 December 2016

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LI
[2016] SASCFC 152
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Lovell)
22 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - PROVOCATION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
This is an application for permission to appeal against sentence.
The applicant was charged with the murder of his mother. She was killed in March 2011. The applicant was tried before a jury who returned a verdict of not guilty of murder but guilty of manslaughter.
The sentencing judge imposed a head sentence of nine years with a non-parole period of seven years, two months and 11 days. The judge could not find good reason to suspend the sentence. The head sentence and non-parole period commenced from 4 July 2014 being the date when the applicant was taken into custody upon his return to Australia from China.
The applicant submits that the judge fell into error in finding beyond reasonable doubt that the applicant killed his mother as a result of a loss of self-control amounting to the partial defence of provocation. He submits it was not open to the trial judge to make this finding consistent with the verdict of the jury and that the sentence is excessive.
The applicant sought permission to amend his notice of appeal to include a ground complaining of the approach the sentencing judge took to the application of s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA). He submits that the judge considered that, given the acquittal on the charge of murder and the verdict of guilty to manslaughter, no basis existed for her to consider the operation of s 32A which permits the imposition of a non-parole period of less than the mandatory minimum of four-fifths of the head sentence. He submits special reasons exist for the purposes of s 32A(2)(b) so as to warrant a non-parole period shorter than four-fifths of the head sentence.
Held per Stanley J (Peek J agreeing) dismissing the appeal:
1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [16]).
2. It is not reasonably arguable that the judge fell into error in finding beyond reasonable doubt that the applicant killed his mother as a result of a loss of self-control amounting to the partial defence of provocation. Permission to appeal on this ground is refused (at [46]).
3. The conduct of the applicant’s mother did not substantially mitigate the applicant's conduct in strangling her to death. It is not accepted that the judge should have found special reasons existed for the purposes of s 32A(2)(b). Permission to appeal on this ground is granted but the appeal is dismissed (at [46]).
Held per Lovell J, dismissing the appeal:
1. Refuse permission to appeal on ground one (at [132]).
2. Grant permission to appeal on the additional ground and dismiss the appeal (at [133]).
Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ba), s 32A, referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; The Queen v Morse (1979) 23 SASR 98; Markarian v The Queen (2005) 228 CLR 357; R v Hansen (2011) 206 A Crim R 54; In R v Weinman (1987) 49 SASR 248; R v Goulding [2007] SASC 60; R v Martin (2007) 99 SASR 213; R v Narayan [2011] SASCFC 61; R v A, D (2011) 109 SASR 197; R v Frencken [2012] SASCFC 71; R v Groth [2013] SASCFC 108; R v Hallcroft [2016] SASCFC 137; Lindsay v R (2015) 255 CLR 272, considered.

R v LI
[2016] SASCFC 152
Court of Criminal Appeal: Peek, Stanley and Lovell JJ

PEEK J. I would dismiss the appeal. I agree with the orders proposed by Stanley J and generally with his reasons.
STANLEY J:
Introduction
This is an application for permission to appeal against sentence.
The applicant was charged with the murder of his mother. She was killed in March 2011. The applicant was tried before a jury who returned a verdict of not guilty of murder but guilty of manslaughter.
The sentencing judge imposed a head sentence of nine years with a non-parole period of seven years, two months and 11 days. The judge could not find good reason to suspend the sentence. The head sentence and non-parole period commenced from 4 July 2014 being the date when the applicant was taken into custody upon his return to Australia from China.
Issues on the application for permission to appeal
The following issues arise on the application:
1.Did the learned sentencing judge err in making findings of fact beyond reasonable doubt for the purposes of sentencing that are inconsistent with the jury verdict?
2.If so, is the head sentence or non-parole period manifestly excessive?
3.Did the learned sentencing judge err in concluding that s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) had no application to this case?
4.If so, did special reasons exist for the purposes of s 32A(2)(b) so as to warrant a non-parole period shorter than four-fifths of the head sentence?
5.If so, is the non-parole period manifestly excessive?
Circumstances of the offending
The applicant gave evidence at the trial. In examination-in-chief he said that his mother approached him and was:[1]
… yelling and screaming. I tried to appease her. There was nothing I can do. There was nothing I could say that was calm her down. But she just came at me out of nowhere. It happened so fast. At some point I realised she had something in her hand, just going at me. I was totally overwhelmed. Although this happened, many, many times before, but I knew this time there was something different about her. She wants to seriously hurt me, for what I had been doing, and nothing I say could reason with her. This time I knew I had no choice but to try and stop her. I think she wanted to kill me. I had to fight back. I had to stop her. Then everything happened after that. I just can’t remember.
[1] T 470.1-470.14.
In cross-examination the applicant said he did not intend to kill his mother. He described her death as an “accident”. He described having to defend himself from his mother. He said that she attacked him and attempted to strangle him.[2] He said he could not recall how his mother sustained the multitude of bruises, abrasions and lacerations that were observed on post-mortem examination. He could not recall strangling her. He could not recall holding his hands around her neck for the three or four minutes that were required to cause her death by manual strangulation.
[2] T 498-499.
There were no witnesses to the death of the applicant’s mother. The evidence was consistent with the applicant overpowering his mother and inflicting a number of blunt force injuries to her head and face. It was open to the jury to infer that some or all of these had been inflicted by the use of a metal rod. It was found next to the deceased. It had the deceased’s blood on it. It had the applicant’s fingerprint in blood on it. It had the applicant’s hair on it. It was sitting underneath a cord that had the deceased’s blood on it. It was open to the jury to infer that the cord had been used by the applicant as a ligature with which to strangle his mother. There was a parallel abrasion on the left side of her neck. The evidence permitted the jury to infer that the applicant had strangled his mother either with his hands or a ligature placed around her neck or both. The evidence was that an act of strangulation will cause a person to lapse into unconsciousness after about 15 – 30 seconds. From that point, and for approximately two more minutes, release of the pressure from the victim’s neck would enable the person to recover. It followed that the deceased’s death was the result of strangulation of the deceased’s neck for a period in the order of four to five minutes. Abrasions on the front of her neck suggests she struggled as the applicant compressed the structures of her neck.
Circumstances of the applicant
The applicant was born on 27 November 1992. He was 18 years of age at the time of the offending. He was born in China. He was raised by his maternal grandparents until the age of 10. At that time he and his parents immigrated to Australia. His parents’ relationship appears to have been tempestuous and marked periods of violence directed by the applicant’s father to the applicant’s mother. For some years before the death of the applicant’s mother, his father seems to have been absent from the family home. The applicant was an only child. He was the focus of his mother’s ambitions to succeed. She was demanding and controlling and placed the applicant under great pressure to achieve both academically and musically. As a result, the applicant experienced a chronic depressed mood, falling short of depression, which commenced during his adolescence. At times in addition to the verbal and emotional abuse directed by his mother to the applicant she was also physically abusive towards him.
Following the death of his mother the applicant fled to Melbourne where he booked into a motel and engaged the services of a prostitute. He subsequently left Australia for China via Singapore. In China he sought refuge with relatives. He remained in China for almost three years working as a teacher, using forged documentation and a false identity. The sentencing judge accepted that he returned to Australia after being arrested by Chinese authorities for having overstayed his entry visa. She rejected his claim that he returned voluntarily to address the charge of murder.
The judge’s sentencing remarks
The judge found that the applicant killed his mother after losing his self-control in the course of an altercation. She rejected the submission that he killed his mother in self-defence, finding that the applicant hit his mother over the head with a metal bar and then strangled her to death. She found that this took several minutes. The judge rejected the submission that the applicant was not trying to evade the justice system when he travelled to China after his mother’s death. She said:
I make it plain that you are not to be punished for any of your conduct after the killing of your mother. While I have taken your post-offending conduct into account in reaching my conclusions as to the true circumstances in which you killed your mother, its only relevance to sentencing is on the issue of whether you have demonstrated any genuine remorse or contrition for your crime…
The judge found the post-offending conduct demonstrated a “chilling lack of remorse or contrition”, notwithstanding her acceptance that for a period after the applicant returned to China he may well have been in a deep depression over the death of his mother.
The trial judge found:
From all of the evidence which I have viewed, together with your presentation during giving evidence in court, I conclude that you are indeed a highly intelligent but narcissistic and self-absorbed young man prepared to lie if you think that it might advance your cause. Much of your evidence at trial was untruthful.
The judge had regard to the applicant’s youth at the time of the commission of the offence and at sentencing. She referred to the evidence she had received concerning his background and family life both in China and in Australia and the opinions of the psychiatrist Dr Brereton and the psychologist Dr Lim, although she considered that limited weight could be given to their opinions given they were based on a history provided to each of them by the applicant which was untruthful in relation to the circumstances in which he killed his mother and returned to Australia. The trial judge accepted that the applicant’s upbringing might be expected to result in emotional difficulties. The trial judge said:
You were very close with your mother when you were younger. However, your mother, I do accept, was controlling and put a lot of pressure on you regarding your academic and musical studies. You experienced a chronic depressed mood, falling short of depression, which commenced during your adolescence.
I have no doubt that the killing of your mother occurred in the context of extreme emotional intensity. I accept also that your mother behaved abusively towards you, both verbally and emotionally and sometimes physically. However, I do not accept that the degree of violence was as great as you say, or as often. It might be the case that from time to time your mother did slap you, however, your claim that she beat you every day whilst you were going to school is plainly ludicrous, as was your claim that she attacked you with a metal bar on the morning of her death.
I accept that your offending was committed in unusual circumstances in the sense that you were subjected to a quite particular and peculiar pressure, being an only child in a family where your father was mainly absent and you were dominated by a possessive and controlling mother. However, that does not justify the violent killing of a woman who loved you and no doubt had made many sacrifices to ensure that you obtained the best education and the best chances in life.
…
I acknowledge your youth. You are now 23 years old. That is a significant factor in sentencing you. However, this is not an instance of a crime committed through youthful irresponsibility. In addition, against your young age I must balance what I have concluded is a disturbing lack of insight, remorse or contrition about your conduct.
For these reasons I categorise the killing of your mother as in the more serious category of an offence of manslaughter.
…
I have considered whether any provision of s.32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) applies to you. However, I cannot think that Parliament intended that a person who has already received the benefit of a partial defence of provocation by the verdict of guilty to the crime of manslaughter should, in effect, be given a double discount for that very same conduct when imposing a non-parole period.
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[3] where Doyle CJ said:[4]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[3] [2009] SASC 346, (2009) 266 LSJS 283.
[4] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[5] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,[6] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[5] (1936) 55 CLR 499.
[6] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
Manifest excess?
In The Queen v Morse,[7] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[8]
[7] (1979) 23 SASR 98.
[8] (1979) 23 SASR 98 at 99.
The maximum sentence for manslaughter is life imprisonment and/or a fine. The maximum sentence prescribed for an offence provides a yardstick that allows a comparison between the worst possible case and the case under consideration,[9] but there is no tariff for the crime of manslaughter. The basis for findings of guilt of manslaughter and the circumstances of such crimes differ widely. There is much room for the exercise of discretion in imposing a sentence for this offence. That must be all the more so where a sentence is imposed following a trial in which all aspects of the offending have been explored in evidence.[10] In R v Weinman[11] King CJ observed that the facts and circumstances of a crime of manslaughter are so varied that it is questionable whether decisions of an appellate court can establish any intelligible standards.
Did the sentencing judge err in the approach she took to making findings of fact for the purpose of fixing sentence?
[9] Markarian v The Queen [2005] HCA 25 at [30] – [31], (2005) 228 CLR 357 at 372.
[10] R v Hansen [2011] SASCFC 10 at [7], (2011) 206 A Crim R 54 at 56.
[11] (1987) 49 SASR 248 per King CJ at 248. See also R v Goulding [2007] SASC 60 per Gray J at [18].
Mr Borick QC, counsel for the applicant, submits that the judge fell into error in finding beyond reasonable doubt that the applicant killed his mother as a result of a loss of self-control amounting to the partial defence of provocation. He submits it was not open to the trial judge to make this finding consistent with the verdict of the jury. In effect he submits that the verdict of guilty to the charge of manslaughter is obscure. Mr Borick accepts that there were three possible bases upon which the jury may have returned the verdict of not guilty of murder but guilty of manslaughter. They were unlawful and dangerous act, excessive self-defence or provocation. He submits that it was not possible for a sentencing judge, consistent with the verdict of the jury, to make a finding beyond reasonable doubt, in favour of any one hypothesis over another. To have found that the applicant killed his mother as a result of a loss of self-control amounting to provocation constituted appealable error.

I do not accept this submission. I consider it is fundamentally flawed. The sentencing judge was obliged to determine the factual basis upon which to sentence. In doing so she was required to ensure that the factual basis for the imposition of sentence is consistent with the verdict of the jury.
The principle was explained in R v Martin[12] where Gray J, with whom Sulan and David JJ agreed, said:[13]
[12] [2007] SASC 336, (2007) 99 SASR 213.
[13] [2007] SASC 336 at [58] – [60], (2007) 99 SASR 213 at 230 – 232.
Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the sentence rests with the judge, not with the jury. A trial judge is entitled to form his or her own view of the facts, provided that view is consistent with the jury verdict. The Victorian appellate decision in Harris,[14] approved by the South Australian Supreme Court in Stehbens,[15] summarises the position:[16]
[14] R v Harris [1961] VR 236.
[15] R v Stehbens (1976) 14 SASR 240.
[16] R v Harris [1961] VR 236 at 236-237.
The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts. He has presided at the trial and he has seen the witnesses and has seen how the trial has progressed, and he can form his own judgement of the seriousness or other character of the offence.
In Stehbens this Court further discussed the authorities:[17]
[17] R v Stehbens (1976) 14 SASR 240 at 245-246 (footnotes omitted).
In this Court, in Reg. v. Thompson Bray C.J. said:
“Is the judge in sentencing still bound to act on the view of the facts most favourable to the accused and consistent with the jury’s verdict? Or can he act on the version which he himself is satisfied beyond reasonable doubt to be true, provided that it is not inconsistent with the jury’s verdict? ... (W)hen the view of the jury of the particular factual issue in question for the purpose of sentencing is unknown, and the judge is prepared to make a finding on it beyond reasonable doubt based on his own opinion of the sworn evidence before him, I am inclined to think that he is at liberty to act upon it.”
We respectfully agree with the proposition, limited as it is to a sentence upon a jury’s verdict. His Honour’s views find support in Reg. v. Kane, where the Court said:
“If the learned Judge, as may well have been the case, regarded it as his duty to take the view of the facts most favourable to the prisoner, it would deny his freedom to form his own view of the facts within the limits of the conviction, and it would be a wrong approach.”
This does not mean, of course, that a judge is free to form his own opinion of the facts without regard to the general principles of proof in criminal cases. The judge must give the prisoner the benefit of any reasonable doubt when forming his view of the facts for the purpose of sentencing the prisoner, consistent with the verdict of the jury. But accepting these principles, we think that the learned trial Judge was fully entitled to form the view which he did form.
The court cannot take into account circumstances that would have warranted a conviction for a more serious offence than the one for which the accused was convicted. The principle is reflected in the judgment of Gibbs J in De Simoni:[18]
[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he had not been convicted. … The combined effect of the two principles … is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
[18] R v De Simoni (1981) 147 CLR 383 at 389.
The applicant’s submission misunderstands the true legal position. It is a trite proposition that the jury’s thinking in arriving at its verdict in a case such as this must necessarily be obscure. However, the sentencing judge in these circumstances must make findings of fact on the basis of the evidence she heard. The only constraint on the findings she makes forming the factual basis for the imposition of sentence is that the finding made must be consistent with the jury’s verdict. It was theoretically open to the sentencing judge to have made findings which were consistent with any of the three hypotheses upon which the jury could have returned the verdict of not guilty of murder but guilty of manslaughter. Accordingly, to have made findings on one basis, as she did, is consistent with the jury verdict. I am satisfied it was open to her to be satisfied that the applicant killed his mother as a result of a loss of self-control amounting to the partial defence of provocation on the evidence before her. In fact it was the most likely hypothesis of the three. Both unlawful and dangerous act and excessive self-defence are less likely findings given the evidence of the time the applicant had to strangle his mother to cause her death. Such a finding was consistent with the jury verdict. The proposition that the sentencing judge could not tell what was in the minds of the jury is misplaced. It is not the role of a sentencing judge to attempt to interpret the jury’s verdict and sentence accordingly. It is to make findings of fact for the purposes of providing a proper basis for the imposition of sentence. In doing so, the judge merely is constrained to ensure that the findings she makes are consistent with the jury verdict. Nothing has been put to demonstrate that the finding she made was inconsistent with the verdict. On the contrary, it is implicit in the applicant’s submission that it must be.
Accordingly, the first ground upon which the applicant contends the sentence was manifestly excessive is not reasonably arguable. I would refuse permission to appeal on this ground.
The non-parole period
In fixing the non-parole period of seven years, two months and 11 days it is apparent the learned sentencing judge fixed the non-parole period at the mandatory minimum of four-fifths of the length of the head sentence in accordance with the provisions of s 32(5)(ba) of the Sentencing Act.
In fixing the non-parole period the learned sentencing judge said:
I have considered whether any provision of s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) applies to you. However, I cannot think that Parliament intended that a person who has already received the benefit of a partial defence of provocation by the verdict of guilty to the crime of manslaughter should, in effect, be given a double discount for that very same conduct when imposing a non-parole period.
The applicant sought permission to amend his notice of appeal to include a ground complaining of the approach the sentencing judge took to the application of s 32A(3) of the Sentencing Act. He submits that the judge considered that, given the acquittal on the charge of murder and the verdict of guilty to manslaughter, no basis existed for her to consider the operation of s 32A which permits the imposition of a non-parole period of less than the mandatory minimum of four-fifths of the head sentence. There is some ambiguity in the sentencing remarks. I accept that the sentencing remarks could be read in the way contended for by the applicant. On the other hand, the remarks may not reflect an approach by the judge that precluded any room for the operation of s 32A but rather reflect a view on the part of the judge that the particular circumstances applicable to the applicant could not give rise to the requisite satisfaction that special reasons existed within the meaning of s 32A. If the learned sentencing judge took the former position I consider that would amount to an error of law.
In R v Narayan[19] Doyle CJ, with whom Nyland and David JJ agreed, addressed the question of whether s 32A could apply to the fixing of a non-parole period for an offence of manslaughter on the basis of provocation. He said:[20]
The DPP conceded before the sentencing Judge that special reasons existed for the purposes of s 32A(3).
The DPP accepted then and on appeal that the conduct of Mr Narayan before the morning in question, and on the morning, substantially mitigated Mrs Narayan’s conduct. Before the sentencing Judge the DPP accepted that Mrs Narayan’s circumstances, her prolonged mistreatment and its effect on her, could also be taken into account because these circumstances were inseparable for Mr Narayan’s conduct. On appeal, Mr Kimber took a somewhat different approach. He submits that Mr Narayan’s conduct is already accounted for by the verdict of guilty of manslaughter on the basis of provocation. He submits that the same conduct cannot be brought to account again when considering the non‑parole period, or in the alternative that it is entitled only to minimal weight. He submits that Mr Narayan’s conduct has already had its effect, in reducing the offence to manslaughter and thereby attracting a sentencing range quite different from that in the case of murder.
I do not agree. As the plurality said in R v A, D, referring to the mandatory period:
[33] The court must consider whether to fix a non-parole period that is longer, the same as or shorter than this period. It will not always be necessary to break the matter up into three separate questions. Experience indicates that often only one of the three options will be realistically open. But in the end they are the options open to the court. The task of the court is no longer to fix the appropriate non-parole period according to established principles.
[34] However, while there are distinct differences between the fixation of a non‑parole period according to established principles, and according to the new provisions, the process remains one in which the punitive, protective and rehabilitative purposes of fixing a non-parole period remain relevant: cf R v Barnett at [49] Vanstone J.
Although Mr Narayan’s conduct on the morning in question, coupled with Mrs Narayan’s loss of control, mean that the offence is manslaughter rather than murder, it is still appropriate when considering the non-parole period to bear in mind that the conduct of Mr Narayan substantially mitigated Mrs Narayan’s conduct. That is the fact. Her conduct was the sudden loss of control, resulting in her throwing the petrol and then igniting it.
[19] [2011] SASCFC 61.
[20] [2011] SASCFC 61 at [46]-[48].
If the learned sentencing judge adopted the former position the appeal court’s power to interfere with the sentence imposed would be enlivened. Even if the sentencing judge adopted the latter position, given the applicant’s submissions that the non-parole period is manifestly excessive, it is necessary to consider whether, in this case, special reasons exist for fixing a non-parole period shorter than the prescribed period and, if so, whether the operation of s 32A warranted the imposition of a shorter non-parole period than the mandatory minimum prescribed for the offence of manslaughter. Accordingly, it is necessary to consider whether special reasons exist for fixing a non-parole period shorter than the prescribed period.
Section 32A provides:
32A—Mandatory minimum non-parole periods and proportionality
(1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.
(2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—
(a)     if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)     if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)     the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)     if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)     the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
(4)This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act.
The Court of Criminal Appeal has considered the operation of s 32A in a series of decisions.
The application of s 32A was first considered in R v A, D.[21] Doyle CJ, Duggan, Anderson and White JJ said:[22]
[21] [2011] SASCFC 5, (2011) 109 SASR 197.
[22] [2011] SASCFC 5 at [33]-[43], (2011) 109 SASR 197 at 204-205.
The court must consider whether to fix a non-parole period that is longer, the same as or shorter than this period. It will not always be necessary to break the matter up into three separate questions. Experience indicates that often only one of the three options will be realistically open. But in the end they are the options open to the court. The task of the court is no longer to fix the appropriate non-parole period according to established principles.
However, while there are distinct differences between the fixation of a non‑parole period according to established principles, and according to the new provisions, the process remains one in which the punitive, protective and rehabilitative purposes of fixing a non-parole period remain relevant: cf R v Barnett at [49] Vanstone J.
If considering whether a non-parole period longer than the mandatory period should be fixed, the court must consider all “objective or subjective factors affecting the relative seriousness of the offence”. This must mean all factors that are relevant according to established principles. It is well-established practice to treat all relevant factors in sentencing as either objective or subjective. That must be what Parliament had in mind. Accordingly, the court will ask itself whether the factors that are relevant to the fixation of a non-parole period according to established principles support or warrant a longer non-parole period than 20 years.
But the mandatory period is not just a number. It identifies a non-parole period appropriate “for an offence at the lower end of the range of objective seriousness”. So the court must ask itself whether, bearing in mind that a 20 year non-parole period is an appropriate non-parole period for an offence of murder at the lower end of the range of objective seriousness, this particular offence (considering all relevant factors according to established principles) warrants a longer non-parole period.
By characterising the mandatory period as appropriate for “an offence at the lower end of the range of objective seriousness”, s 32A will increase non-parole periods. Experience indicates that 20 years is a high non-parole period for an offence of murder “at the lower end of the range of objective seriousness”. Parliament must have intended to encourage longer non-parole periods for the offence of murder.
In this way the mandatory or prescribed period operates as a yardstick or benchmark. Parliament has chosen to identify 20 years as an appropriate non-parole period for an offence of murder “at the lower end of the range of objective seriousness”. It is a strange benchmark. The benchmark is identified by reference only to objective seriousness. The court has to compare a particular case, taking account of objective and subjective factors, with a benchmark that is affected by objective factors only. The court is not able to compare like with like. The process is not easy to explain. But this is the statutory task.
We emphasise that although the court fixes such non-parole period as it thinks fit, it fixes the non-parole period that is fit in light of the comparison that must be made. The court does not exercise a discretion at large.
In considering whether a non-parole period shorter than the mandatory period should be fixed, the court must first consider whether “special reasons” exist. If “special reasons” do not exist, there is no power to fix a non-parole period shorter than 20 years. It is a departure from established principles to pick out particular factors in this way, but that is what Parliament has done in s 32A(3).
If “special reasons” exist, the court can fix a non-parole period shorter than the mandatory period, but only if those special reasons support fixing a non-parole period that is shorter than the prescribed period. This means that the “special reasons” must warrant or support the fixing of a non-parole period shorter than the mandatory period.
The court has to ask itself whether, bearing in mind that a non-parole period of 20 years is appropriate for an offence at the lower end of the range of objective seriousness, the special reasons present in the case warrant or support a shorter non-parole period for this offence and this offender.
This is a complicated process. It will cause difficulty for sentencing courts. We cannot identify any good reason for sentencing in this fashion. But that is Parliament’s choice.
In Narayan[23] Doyle CJ turned to consider the application of the provision in circumstances where the issue was whether a sentencing judge had erred in imposing a shorter non-parole period than the mandatory minimum prescribed for the offence of manslaughter. He said:[24]
As I have already said, the Judge had to bear in mind that the mandatory period was appropriate for an offence at the lower end of the range of objective seriousness. Section 32A requires the Court to postulate an offence of manslaughter at the lower end of the range of objective seriousness. But the circumstances of manslaughter are so variable that it is difficult, if not impossible, to postulate a typical offence of manslaughter at the lower end of the range of objective seriousness. ...
To my mind the best one can do in a case like this is to proceed on the basis that the mandatory period, four-fifths the length of the head sentence, is appropriate for an offence of causing death in circumstances reduced from murder to manslaughter by the provocation of the victim, and appropriate for such an offence at the lower end of the range of objective seriousness. The Judge then had to consider whether, bearing that in mind, the matters identified as special reasons supported a non-parole period shorter than the mandatory period.
This is a complicated process. There is an air of artificiality about it. One cannot help wondering what the exercise achieves in terms of a meaningful sentencing exercise. But it is what the Act requires.
[23] [2011] SASCFC 61.
[24] [2011] SASCFC 61 at [42] – [44].
In R v Frencken[25] Vanstone J, with whom Nyland and David JJ agreed, said that when considering the application of s 32A the sentencing judge’s task is to first determine whether there are any of the qualifying matters prescribed by s 32A(3) in existence and then, if there are, to determine whether they are such as to warrant a non-parole period shorter than the mandatory minimum. The first step involves quite a confined enquiry; the second involves evaluation of the matter in a wider context. Vanstone J explained the latter evaluative process in the following terms:[26]
In addition to considering the qualifying matters themselves, the judge was entitled to take into account, on the question of whether a reduction was warranted, any subjective factors tending against such a reduction. Because, although a reduction could only be justified having regard to one or more of the qualifying matters, the proof of, for example, relevant prior convictions, or the offence being committed in defiance of conditions of parole or a good behaviour bond, could offset the impact of a qualifying matter. It is important to note that the notional non-parole period of four-fifths already comprehends the objective features of the crime. It must be at the point of considering whether a qualifying matter warrants a reduction that other factors personal to the defendant which point the other way are brought to account. I do not read the reasons of the plurality in R v A, D as saying anything to the contrary.
[25] [2012] SASCFC 71.
[26] [2012] SASCFC 71 at [18].

In R v Groth[27] I considered the operation of s 32A. I said:[28]
The only factors to be considered by the sentencing judge in determining whether special reasons existed for the purposes of s 32A(2)(b) are those prescribed by s 32A(3). Moreover, it is important to note that in considering whether to fix a shorter non‑parole period than the mandatory minimum pursuant to s 32A(2)(b), the mandatory minimum non-parole period represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which it applies.
[Citation omitted].
[27] [2013] SASCFC 108.
[28] [2013] SASCFC 108 at [35].
In Groth the sentencing judge had concluded that the circumstances of the appellant’s offending did not fall within the lower range of seriousness for the offence of manslaughter. Accordingly, she was not prepared to impose a lower non-parole period than the prescribed mandatory minimum. I held there was no error in the sentencing judge’s approach. Vanstone and David JJ agreed with these reasons.
Subsequently the Full Court, sitting as a court of five, has revisited the approach to the construction and application of s 32A in R v Hallcroft.[29]In Hallcroft Kourakis CJ with whom Peek, Lovell, Doyle JJ and I agreed, held that the phrase in s 32A(2)(b) “if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period” is a compendious expression. The Chief Justice said:[30]
Special reasons only exist if they are reasons to fix a non-parole period that is shorter than the prescribed period. It is because special reasons are only those reasons which support the fixing of a non-parole period less than the prescribed minimum period, that special reasons are more likely to be found if the non-parole period, which would have been fixed if the discretion in s 32A(2) of the CLSA discretion were not exercised favourably, is close to 20 years.
…
It is in cases which are at the lower end of the objective seriousness that the matters to which the court is confined by s 32A(3) of the CLSA are more likely to warrant a non-parole period less than 20 years. However, if those matters are very strongly mitigatory, special reasons warranting a non-parole period less than the prescribed minimum may also be found in offences higher on the scale of objective seriousness…
[29] [2016] SASCFC 137.
[30] [2016] SASCFC 137 at [58] and [60].
The only basis upon which special reasons could be found to exist is pursuant to the qualifying matter in s 32A(3)(a), i.e., that the offence was committed in circumstances in which the victim’s conduct substantially mitigated the offender’s conduct.
Accordingly, in this case, the court is to proceed by examining whether the objective factor in s 32A(3)(a) is strongly mitigatory. If it is, the court must consider whether it establishes the existence of special reasons for fixing a non-parole period shorter than the prescribed period. It is at this point that the court will bring to account countervailing subjective factors. If the court is satisfied of the existence of special reasons, then the court must decide the extent to which a non-parole period should be fixed that is shorter than the prescribed period.
Mr Borick submits that the victim’s conduct commences with her abandoning the applicant to the care of his grandparents for the first 10 years of his life followed by domineering and controlling conduct on her part which included emotional, verbal and physical abuse. He submits this substantially mitigated the applicant’s conduct. Mr Pearce QC, counsel for the Director, submits that the victim’s conduct could not substantially mitigate the applicant’s conduct. He submits the applicant’s conduct was his sudden loss of self-control, causing him to strike his mother to the head with a metal bar and then strangle her with his hands or a ligature until she was unconscious, after which he continued to strangle her for several minutes while she lay unconscious, ultimately causing her death.
The sentencing judge found that the applicant killed his mother in the context of extreme emotional intensity where she had behaved abusively towards him, verbally, emotionally and sometimes physically. The judge rejected the applicant’s evidence that his mother beat him every day while he was going to school or that on the day of her death she had attacked him with a metal bar. On the contrary, she found that at worst from time to time the applicant’s mother would slap him. The judge concluded that the applicant demonstrated a disturbing lack of insight, remorse or contrition about his conduct in killing his mother. She described this as “chilling”. In my view those findings were open to the judge. No error has been demonstrated in the judge acting on those findings.
In my view the conduct of the applicant’s mother did not substantially mitigate his conduct. It must be borne in mind that the offence under consideration is the offence of manslaughter. The fact that the conduct of the applicant’s mother was sufficiently provocative to cause the jury to acquit him of the charge of murder but find him guilty of manslaughter does not, ipso facto, demonstrate that his mother’s conduct substantially mitigated his conduct in strangling her to death. That involves a question of degree. The judge found the conduct of the applicant’s mother caused him momentarily to lose self-control such that the partial defence of provocation was made out. The verbal, emotional and occasional physical abuse to which the applicant was subject did mitigate his conduct to some degree but in my view it did not substantially mitigate his conduct in strangling his mother to death. Accordingly, I reject the submission that the judge should have found special reasons existed for the purposes of s 32A(2)(b).
Even if I was to conclude that the mother’s conduct substantially mitigated the applicant’s conduct, I would still reject the submission that the judge should have been satisfied that special reasons existed for fixing a non-parole period shorter than the prescribed minimum so as to warrant fixing a shorter non-parole period than the seven years, two months and 11 days imposed.
Section 32A(1) provides that where a mandatory minimum non-parole period is prescribed in respect of an offence, as is the case here, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies. In Hallcroft the Chief Justice said:[31]
The benchmark, fixed, as it is, by reference only to objective seriousness makes no allowance for subjective factors which are mitigatory. Accordingly the non-parole period fixed for an offence which is relatively more serious might nonetheless be no more than the minimum because the subjective factors in mitigation counterbalance the offence’s more serious objective factors. Moreover, even though an application of the 20 year benchmark to an offence at the lower end of the scale of objective seriousness, committed by an offender with strongly mitigating subjective factors, would ordinarily result in a non-parole period of less than 20 years, a non-parole period of 20 years must still be fixed because, subject to the special reasons discretion, the benchmark is also the statutory minimum.
In short, and leaving aside a reduction in the non-parole period for special reasons, the effect of s 32(5)(ab) of the CLSA is that there is no scope to give a defendant who commits an offence at the lower end of the range of objective seriousness and has mitigating personal circumstances, any lesser non-parole period than another defendant who commits an offence at the lower end of objective seriousness but has few, or no, mitigating personal circumstances. Nor is there any scope to give a defendant who commits an offence which is objectively more serious but has strong personal circumstances in mitigation, including for example a plea of guilty at the earliest opportunity a non-parole period of less than 20 years, when the circumstances would have so demanded when measured against the 20 year statutory benchmark, as a result of the statutory minimum.
[31] [2016] SASCFC 137 at [49] – [50].
In this case the learned sentencing judge categorised the applicant’s killing of his mother as being in the more serious category of an offence of manslaughter. In my view the sentencing judge’s categorisation of the applicant’s killing of his mother as being in the more serious category of an offence of manslaughter was open. The weighing of subjective factors does not warrant the imposition of a shorter non-parole period than the mandatory minimum. The applicant’s lack of insight, remorse or contrition do not indicate that his prospects of rehabilitation are good. There is no reason to consider him a good candidate for parole. While the applicant’s youth is a factor in his favour, I can see no justification for concluding that special reasons existed warranting a shorter non-parole period than the mandatory fixed pursuant to s 32(5)(ba). This was not offending at the lower end of the range of objective seriousness for the offence of manslaughter and weighing the subjective factors relevant to the circumstances of the applicant does not make it so. In this case, apart from the applicant’s youth, the subjective factors are not mitigatory. On the contrary they weigh against a finding that special reasons exist to fix a non-parole period shorter than the prescribed period.
While I consider this ground of appeal is arguable, thereby justifying a grant of permission to appeal on this ground, for the above reasons I would nonetheless dismiss the appeal.
Conclusion
I would refuse permission to appeal on ground 1. I would grant permission to appeal on the s 32A ground but dismiss the appeal on that ground.
LOVELL J:
I have had the advantage of reading Stanley J’s judgment. I gratefully adopt his summary of the facts in relation to the offending in this matter. I do not need to repeat those matters.
There were a number of grounds of appeal. However the main ground of appeal, ground nine, was that the sentence was manifestly excessive. It was argued as a particular of ground nine that the learned sentencing Judge erred in making specific findings beyond reasonable doubt that the applicant killed his mother as a result of a loss of self-control amounting to the partial defence of provocation.
In relation to that ground I would dismiss that ground of appeal and for the reasons expressed by Stanley J.
The applicant was granted leave to amend his notice of appeal to include the ground that the sentencing Judge erred in her interpretation and application of s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”).
When fixing the non-parole period the learned sentencing Judge stated:[32]
I have considered whether any provision of s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) applies to you. However, I cannot think that Parliament intended that a person who has already received the benefit of a partial defence of provocation by the verdict of guilty to the crime of manslaughter should, in effect, be given a double discount for that very same conduct when imposing a non-parole period.
[32] Appeal Book pp 142-143.
In R v Narayan[33] the Court did not accept that reasoning.
[33] [2011] SASCFC 61.
Doyle CJ (with whom Nyland and David JJ agreed) stated:[34]
On appeal, Mr Kimber took a somewhat different approach. He submits that Mr Narayan’s conduct is already accounted for by the verdict of guilty of manslaughter on the basis of provocation. He submits that the same conduct cannot be brought to account again when considering the non‑parole period, or in the alternative that it is entitled only to minimal weight. He submits that Mr Narayan’s conduct has already had its effect, in reducing the offence to manslaughter and thereby attracting a sentencing range quite different from that in the case of murder.
I do not agree. As the plurality said in R v A, D, referring to the mandatory period:
[33] The court must consider whether to fix a non-parole period that is longer, the same as or shorter than this period. It will not always be necessary to break the matter up into three separate questions. Experience indicates that often only one of the three options will be realistically open. But in the end they are the options open to the court. The task of the court is no longer to fix the appropriate non-parole period according to established principles.
[34] However, while there are distinct differences between the fixation of a non‑parole period according to established principles, and according to the new provisions, the process remains one in which the punitive, protective and rehabilitative purposes of fixing a non-parole period remain relevant: cf R v Barnett at [49] Vanstone J.
Although Mr Narayan’s conduct on the morning in question, coupled with Mrs Narayan’s loss of control, mean that the offence is manslaughter rather than murder, it is still appropriate when considering the non-parole period to bear in mind that the conduct of Mr Narayan substantially mitigated Mrs Narayan’s conduct. That is the fact. Her conduct was the sudden loss of control, resulting in her throwing the petrol and then igniting it.
[34] R v Narayan [2011] SASCFC 61 [47]-[48].
In my view her Honour erred in her approach in not considering the application of Section 32A(2) and (3) when fixing the non-parole period. The appellant therefore falls to be resentenced on this aspect.
Sentencing remarks
The applicant gave evidence at trial that he acted in self-defence. The Judge considered that his evidence of the facts surrounding the actual offending was untrue. The Judge stated:[35]
Instead of facing up to your responsibility for the killing of your mother in circumstances where you lost your self-control, you have instead repeated to all and sundry, again and again, the same lie, namely that your mother attacked you with a metal bar and you, not her, were the one engaged in a struggle for your life. Repeating a lie, Mr Li, no matter how often, does not make it true.
[35] Appeal Book p 138.
The Judge also rejected the applicant’s evidence that he returned voluntarily from China to face the charges. Indeed the evidence demonstrated that having been arrested in China the applicant had no choice but to return to Australia. In conjunction with other evidence the Judge found that the applicant lacked contrition for his offending.
In relation to the applicant’s background the Judge stated:[36]
You do not have any mental illness or condition which might explain the killing of your mother. However, there is no doubt, as both of the experts observed, that you have had an upbringing that might be expected to result in emotional difficulties.
…
You were very close with your mother when you were younger. However, your mother, I do accept, was controlling and put a lot of pressure on you regarding your academic and musical studies. You experienced a chronic depressed mood, falling short of depression, which commenced during your adolescence.
I have no doubt that the killing of your mother occurred in the context of extreme emotional intensity. I accept also that your mother behaved abusively towards you, both verbally and emotionally and sometimes physically. However, I do not accept that the degree of violence was as great as you say, or as often.
[36] Appeal Book p 140-141.
The Judge had before her the reports of Dr Brereton, a psychiatrist, and Dr Lim, a psychologist, when considering sentence. Whilst the Judge stated that their opinions as to the applicant’s conduct on the day of the offence were limited due to his “lies concerning the circumstances” about the killing of his mother, there was little dispute about the applicant’s background. The Judge, in her sentencing remarks, did not accept all of the applicant’s evidence about his mother’s conduct particularly relating to the question of what physical violence she may or may not have inflicted upon him. Further having heard the evidence the Judge categorised the offending as in “the more serious category of an offence of manslaughter”.[37] The Judge also commented on the appellant’s “disturbing lack of insight, remorse or contrition”[38]. This Court should resentence on the basis of the Judge’s findings.
[37] Appeal Book p 142.
[38] Appeal Book p 142.
The Judge’s finding was that the killing was “in the context of extreme emotional intensity.” That is a finding consistent with the jury verdict. Such a finding can only relate to the nature of the relationship between the applicant and his mother. It must be accepted, consistent with the Judge’s interpretation of the jury verdict that the deceased’s behaviour towards her son was a factor leading to his loss of control.
The Judge found that the “offending was committed in unusual circumstances” in the sense the he was “subjected to a quite particular and peculiar pressure”.[39] The question therefore is whether his mother’s conduct “substantially mitigated the offender’s conduct” such that “special reasons” exist to enliven the discretion to impose a lower non-parole period.
[39] Appeal Book p 141.
The Law
Section 32A of the Sentencing Act provides:
32A—Mandatory minimum non-parole periods and proportionality
(1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.
(2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—
(a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
(4)This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act.
The circumstances in which manslaughter can be committed vary greatly and therefore sentences can vary widely. This is particularly so where after a charge of murder the jury brings back a verdict of not guilty of murder but guilty of manslaughter due to the operation of the partial defence of provocation.
When sentencing for manslaughter the Court is to proceed on the basis that the mandatory period of four-fifths the length of the head sentence is appropriate for an offence at the lower end of the range of objective seriousness. As stated in R v Narayan:[40]
This is a complicated process. There is an air of artificiality about it. One cannot help wondering what the exercise achieves in terms of a meaningful sentencing exercise. But it is what the Act requires.
[40] [2011] SASCFC 61 [44].
Against that statutory requirement the Court has to consider whether to fix a non-parole period that is longer, the same as or shorter than this period. It is not necessary to break the matter up into three separate questions.[41] Whilst this is a resentencing exercise I note that the sentencing Judge did not consider that a longer non-parole period than the mandatory minimum should be fixed.
[41] R v A,D (2011) 109 SASR 197, 204 [33].

In fixing the length of the non-parole period in a particular case Section 32A(2)(a) requires the Court to consider whether a longer non-parole period is warranted because of any “objective or subjective factors” whereas Section 32A(2)(b) allows a court to fix a shorter period if there are “special reasons” to do so arising out of the prescribed matters.
The task facing a sentencing court in relation to considering the application of Section 32A requires the Court to determine whether any of the qualifying matters prescribed by Section 32A(3) are in existence and then if they are to determine whether they are such as to warrant a non-parole period shorter than the mandatory minimum.[42]
[42] R v Frencken [2012] SASCFC 71; R v Groth [2013] SASCFC 108.
In R v Hallcroft[43] the Court considered what was meant by the expression “special reasons exist for fixing a non-parole period that is shorter than the prescribed period”. Kourakis CJ (with whom the other members of the Court agreed) stated:[44]
The phrase ‘if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period’ is a compendious expression. Special reasons should not be conflated with the prescribed matters to which the court’s consideration is confined by s 32A(3) of the CLSA. Special reasons cannot exist in the abstract, unconnected to a consideration of whether they support a reduction in the minimum non-parole period. Special reasons only exist if they are reasons to fix a non-parole period that is shorter than the prescribed period. It is because special reasons are only those reasons which support the fixing of a non-parole period less than the prescribed minimum period, that special reasons are more likely to be found if the non-parole period, which would have been fixed if the discretion in s 32A(2) of the CLSA discretion were not exercised favourably, is close to 20 years.
In R v Barnett[45] I explained:
[91]One thing is relatively clear. The prescribed matters cannot be considered as mere pegs upon which to hang the special reasons hat. They must alone or in combination establish a persuasive case for departure from the general rule, by showing that the purpose of the rule will not be advanced by its application to the particular case. In practice, therefore, one would only expect to find special reasons in the case of an offence which is at the very lower end of the range of seriousness and where, by reason of the prescribed matters, the imposition of the mandatory minimum would appear to be disproportionate and oppressive.
[92]If the question whether there are special reasons to reduce the mandatory non-parole period is answered in the affirmative, then the next step is to determine the length of the non-parole period. In exercising the discretion to “fix such shorter non-parole period as it thinks fit”, the Court must have regard to all of the circumstances ordinarily relevant to the fixing of a non-parole period. However, the Court must also have regard to the benchmark established by the mandatory minimum. To do otherwise would lead to significant disparity between those cases where there are special reasons and those where there are not. An approach which creates two quite distinct and disparate sentencing regimes, which are divided by a finding of special reasons, will inevitably engender a sense of grievance on the part of those who are without special reasons and should be eschewed.
(Citations omitted)
It is in cases which are at the lower end of the objective seriousness that the matters to which the court is confined by s 32A(3) of the CLSA are more likely to warrant a non-parole period less than 20 years. However if those matters are very strongly mitigatory, special reasons warranting a non-parole period less than the prescribed minimum may also be found in offences higher on the scale of objective seriousness. My observations in R v Barnett[46] should be so understood.
[43] [2016] SASCFC 137.
[44] R v Hallcroft [2016] SASCFC 137 [58]-[60].
[45] (2009) 198 A Crim R 251 [91]-[92].
[46] (2009) 198 A Crim R 251 [91].
R v Hallcroft[47] involved a sentence for murder where the mandatory minimum non-parole period is fixed at 20 years. Further it involved discussion of Sections 32A(3)(b) and (c) only. The Court specifically left the interpretation of Section 32A(3)(a) aside.[48] There were good reasons for so doing as considerations that are relevant to the operation of Sections 32A(3)(b) and (c) are not present when considering Section 32A(3)(a).
[47] [2016] SASCFC 137.
[48] R v Hallcroft [2016] SASCFC 137 [67].
Thus a finding of “special reasons” does not necessarily mean a sentencing judge is obliged to fix a non-parole period shorter than the mandatory period. The existence of “special reasons” merely enlivens the Court’s power to consider whether a non-parole period shorter than the mandatory period should be fixed.[49] In deciding whether I am satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period only the condition set out in Section 32A(3)(a) is relevant namely whether “the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct.”
[49] R v Groth [2013] SASCFC 108 [35].
As this involves a determination of matters that mitigate his conduct the applicant bears the onus of proof. He must establish that, on the balance of probabilities, the offence was committed in circumstances in which the victim's conduct (or condition) substantially mitigated his conduct.
The application of this section to any particular set of facts is a difficult task for any sentencing Judge.
The Court is required to first identify, and give content to, the victim’s conduct (or condition) as it relates to the offending as well as identifying, as specifically as the circumstances allow, the offender’s conduct. Finally having identified those two matters the Court must consider the relationship between those two matters that is whether the victim’s conduct (as found) “substantially mitigated” the offender’s conduct (as found).
The expression “substantially mitigated” is not defined in the Act. “Substantially” in this context should be given its ordinary meaning namely “considerably” or “significantly”. The fact that the defence cannot be negatived by the prosecution beyond a reasonable doubt, by itself, would not be enough for Section 32A(3)(c) to be made out. The section needs to be interpreted in its statutory context namely that Parliament has determined that in the usual or standard case the mandatory minimum non-parole period must be served. It cannot be overlooked that the prescribed mandatory minimum non-parole period is expressed to be for offences at the lower end of objective seriousness.
Against that statutory framework, even if Section 32A(3)(c) is made out, for special reasons to be found, the victim’s conduct must be such that the imposition of the mandatory minimum non-parole period would be manifestly disproportionate to the circumstances of the offending and the moral culpability of the offender.[50]
[50] R v Hallcroft [2016] SASCFC 137.
Objective seriousness - applicant’s conduct
As mentioned the facts of the offending are set out in the judgment of Stanley J.
The evidence demonstrated that the applicant overpowered his mother and inflicted a number of injuries to her head and face before applying a ligature to strangle his mother. The evidence at trial was that an act of strangulation would cause a person to lapse into unconsciousness after about 15 to 30 seconds but to cause death required strangulation for a period of four to five minutes. The sentencing Judge rejected as being consistent with the jury’s verdict that the applicant acted in self-defence. As already discussed the Judge sentenced the applicant on the basis that the jury must have accepted, at least as a reasonable possibility, that the applicant was provoked by his mother’s conduct.
Consistent with her Honour’s findings, the jury must have accepted that from the applicant’s perspective that not only was it a reasonable possibility that he lost his self-control but that an ordinary person in the position of the accused might also have lost their self-control.
As the majority in Lindsay v R stated:[51]
The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury's consideration. The determination of the threshold question requires the trial judge (and the appellate court) to consider the sufficiency of the evidence to allow that an ordinary person provoked to the degree the accused was provoked might form the intention to kill or to do grievous bodily harm and act upon that intention, as the accused did, so as to give effect to it.
(Footnotes omitted)
[51] Lindsay v R (2015) 255 CLR 272, 279 [16].
While the killing could not be said (as the Judge found) to be necessarily at the lower end of objective seriousness the fact that the applicant could kill his mother in such circumstances raises very clearly the nature of their relationship before the offending.
Provocative conduct - the victim’s conduct
It is necessary to determine the conduct of the victim that is alleged to have substantially mitigated the offender’s conduct.
To understand the victim’s conduct it is necessary to set out the family background in some detail.
Family background
In his report of 11 January 2016, Dr Brereton, having noted that important details regarding the offending were disputed, stated:[52]
Nevertheless, Mr Li provided a wealth of information regarding his upbringing and his relationship with his mother. The history he provided in this regard had subtleties of detail that persuaded me his account was accurate and that he did suffer an abusive relationship at the hands of his mother.
[52] Appeal Book p 75.
As already discussed the Judge accepted the fact that there was an abusive relationship although not the extent of the alleged physicality of that relationship suggested by the applicant. It is important however to understand the applicant’s background in its entirety.
The applicant’s parents, during the 1980s when China opened up to the world, ran several successful businesses. Unfortunately, shortly after Mr Li was born, the businesses started to decline. This led to them spending larger amounts of time at work and raising the applicant was not a priority. A few months after his birth his parents handed custody of him to his maternal grandparents in Mongolia.
For 10 years his grandparents became his primary carers and substitute parents. He rarely saw his parents; they visited Mongolia a couple of times a year. When attending they would give him a lot of gifts and this confused him because they “were strangers”. The visits were brief and did not provide him with an opportunity to bond with them.
The applicant’s grandparents lived in relatively poor conditions whereas his parents lived a somewhat lavish lifestyle. On occasions when he visited his parents he remembered that their relationship was tumultuous and on occasions violent. At an early age he noted that his father had problems with alcohol and controlling his anger. He witnessed aggressive behaviour towards his mother.
When the applicant was about 10 years old his parents decided to immigrate to Australia. He was unaware of the plan until his parents arrived in Mongolia to take him with them; he had no time to prepare. At that time he was in the middle of his primary school term in China. His grandparents were devastated by his parents’ decision to take the applicant away but their wishes were ignored.
The applicant and his parents arrived in Adelaide in 2003. The applicant could not speak English and he was enrolled in a primary school in order for him to learn. He was subsequently transferred to the Parkside Primary School for his Year Five.
At this time his home environment at that stage remained as volatile as when he had visited his parents during his early childhood. His father drank excessively and his parents argued on a regular basis. Mr Li witnessed violence towards his mother.
Further the applicant experienced difficulty transitioning to the Australian lifestyle and the academic curriculum. He found the language barrier especially challenging and was bullied at school over his poor command of the language. His parents also relied on him to be their interpreter as they had never learnt English properly.
His parents ran a real estate development business but that failed. They then started a business known as “China House Trading”, an antique furniture shop on King William Street.
Due to the escalation of his father’s violence towards his mother the applicant stated that he grew closer to her and he felt “very protective” towards her.
The applicant gained entry to Prince Alfred College in Year Eight as a full fee paying student. Despite the fact that the family finances had declined his mother wanted him to go to a private school. By this stage his mother was in full control of the family finances and she became the dominant personality at home.
Mr Li’s father returned to China although he came back to Australia frequently but the visits became less regular.
Once he attended Prince Alfred College, Mrs Li demanded perfect grades at school. She insisted that he practice the piano for hours each day and she wanted him to achieve the highest grade possible for that instrument. She also insisted that he play the cello and made him learn French, Japanese and Cantonese on top of the languages that he already spoke.
At school his mother made him enrol in the International Baccalaureate and she wanted him to become a lawyer or a diplomat and thought that this would increase his chances of gaining employment in Europe.
Mr Li’s mother began controlling other aspects of his life. He was not allowed to do his own shopping and she would buy his clothes for him. He was not allowed to play or socialise with peers outside of school. He was required to study for hours and engage in a range of extra-curricular activities such as the already mentioned music lessons or language classes.
The applicant also worked in the family business and as his parents spoke little English he had to take over tasks such as arranging furniture shipments, customer service and bill payments.
His mother also obsessed over his weight and restricted his diet to that of being mainly a vegetarian.
Once he commenced Year 11 the controlling behaviour of his mother intensified. She would scold him and occasionally slap him if she thought his grades were not good enough.
The controlling behaviour intensified during Years 11 and 12. His mother never praised him but was often verbally insulting and demeaning. The applicant reported that despite his efforts and achievements his mother was never satisfied. He believed that his mother regarded him as a failure.
Mr Li achieved well in Year 12. In December 2010 the applicant successfully completed his International Baccalaureate achieving a Tertiary Entrance Rank (TER) score of 96.3. He reported that his mother was displeased with that result as he did not qualify for the Bachelor of Laws program at the Australian National University in Canberra which had been her choice for him. Again she considered him a failure.
The applicant accepted an offer from the University of Adelaide of pursuing a double degree majoring in Law and International Studies. He commenced his first year of university studies in February 2011. He attempted to obtain a degree of independence enrolling in social and sporting clubs at university. In particular he joined a martial arts club which his mother resented. The applicant’s mother however attempted to tighten her control even further at that stage. Mr Li wanted to practice martial arts at home but his mother tried to impose piano practice instead.
Immediately after finishing Year 12 Mr Li spent some time travelling in China on his own meeting up with family members. He had also considered moving out of the family home and had attempted to discuss his plans with his parents. Despite the fact that he had not shifted out of home and that he had returned from China his mother regarded him as a “traitor.” She continued to see him as a failure because he was not at the Australian National University.
Discussion
In this case the long-standing relationship between the victim and the applicant is clearly relevant. This may not necessarily be so in all cases. The relevant conduct, involving as it does here the relationship, need not have occurred only immediately prior to the offence being committed. The conduct may have occurred over some period of time; how far in time one can go back depends on the circumstances of the case. However there must be some temporal relationship between the relevant conduct and the offending.
The relevant conduct is, in a generic sense, and given the Judge’s findings, easy to determine. As the Judge found:[53]
However, your mother, I do accept, was controlling and put a lot of pressure on you regarding your academic and musical studies. You experienced a chronic depressed mood, falling short of depression, which commenced during your adolescence.
I have no doubt that the killing of your mother occurred in the context of extreme emotional intensity. I accept also that your mother behaved abusively towards you, both verbally and emotionally and sometimes physically. However, I do not accept that the degree of violence was as great as you say, or as often.
[53] Appeal Book p 141.
As the Judge did not consider it necessary to consider the application of this section her findings are general. To determine this question, it is necessary to give the Judge’s remarks about the victim’s conduct some content.
The Judge generally accepted the opinion of Dr Brereton and Dr Lim except in relation to what they were told by the applicant about how the offending occurred.
I accept as proved that the victim behaved abusively towards the applicant verbally, emotionally and on occasions physically. That controlling behaviour began shortly after the applicant’s family immigrated to Australia. It intensified once the applicant began Year 11 of his schooling.
The victim determined that the applicant had to enrol in the International Baccalaureate (IB) so as to best fulfil her plans for him to become a lawyer or diplomat. As well as demanding perfect scores in the subjects that counted towards his IB score and TER she insisted that he learn other languages and another musical instrument apart from the piano. These extra activities could not affect his IB score but were part of her desire for him to become a lawyer or a diplomat. The victim’s insistence that he learn French was because her sister could speak it fluently.
As discussed earlier, his mother controlled his image. She would not allow him to do his own clothes shopping and she decided what he could wear; this included the type of glasses he was to wear and how his hair was to be cut. She also controlled his diet by largely restricting him to a vegetarian diet. The applicant was required to also work in his parents shop.
Further she controlled who he could socialise with outside of school hours. This led to the applicant becoming socially isolated and the only people he had contact with outside of school were his parents’ Chinese associates in Adelaide.
The victim was also engaged in psychological abuse of the applicant. She would, demean him, insult him and scold him about his results; he felt he never had her approval. The victim would refer to him as “piece of rubbish” and say things like “why don’t you go and die”. On occasions, although not as often as he reported, she would physically assault him. This behaviour continued throughout Years 11 and 12 of the applicant’s schooling.
Despite the applicant having achieved the excellent TER of 96.8 the victim remained unhappy and abusive toward the applicant. The victim wanted him to attend the Australian National University but he fell just short of obtaining the appropriate entrance score. She considered him a failure despite the fact that he was accepted into a double degree course at the Adelaide University.

The applicant tried to assert some independence when he commenced his university studies; he socialised more and joined a university martial arts club. The victim attempted to tighten her control over the applicant at this time. She resented the fact that he was asserting some independence and she continued with her attempts to control him. This included setting a study schedule for him. The psychological abuse and to a lesser extent the physical abuse continued up until the offending occurred.
That a parent may want to discipline their child to study and work hard at school in order to obtain results that enable a child to have a choice of tertiary education is, of itself, unremarkable. Further that a parent may wish their child to avoid socialising with people who may not have the same “goals” is again by itself unremarkable. The degree to which control over those factors is exercised by parents no doubt varies, perhaps substantially, throughout society. Clearly each case must be determined on its own particular facts.
A significant factor in this case is that the above behaviour occurred against the background of his parents abandoning the applicant to the care of his maternal grandparents until the applicant was aged 10. He was then uprooted from his life in China, with little or no warning, and brought to Australia. There was a history of alcohol abuse and domestic violence within the family that he also witnessed.
Dr Brereton opined that the applicant’s childhood background was traumatic and that it “might be expected to give rise to emotional difficulties”, The Judge accepted Dr Brereton’s opinion that the behaviour of his mother contributed to the applicant developing a “chronic depressed mood” which commenced during his adolescence.
Dr Brereton stated:[54]
It would appear Mr Lei (sic) had an intense and ambivalent relationship with his mother. On the one hand, they were enmeshed and he made every effort to please her; on the other hand, he could never get her approval and wanted to be independent of her. He received her undivided attention and yet felt rejected. When he discussed his feelings towards his mother he spoke in terms of loyalty and guilt. He denied feeling any anger or resentment towards her but I have no doubt, in light of his description of his experiences, that these feelings were present also.
The reasons for this complex relationship are various. He was effectively abandoned by his parents for the first ten years of his life. He described the move to Australia, where the family were bound together in a degree of cultural and social isolation. He then sided with his mother in the face of his father’s violence and felt a responsibility to protect her from the domestic violence. As he learnt English, but his parents did not, he felt an increasing duty to care for them and help manage their affairs and business. When his father began to spend time in China, he was increasingly isolated with his mother. He did not believe she would cope socially or in business without him and he felt the weight of her expectations to do well for the family. Mr Li pointed out this aspect of their relationship was amplified by their cultural background, particularly a cultural sense of filial piety …
[54] Appeal Book p 72 [12.7]-[12.8].
He also stated:[55]
In the months leading up to the alleged offence there were a number of circumstances that were likely to increase the difficulties between Mr Li and his mother. Mr Li had finished school but, despite doing well, his mother was still disappointed and he believed she regarded him as a failure. He had increasingly tried to assert his independence from his mother: he had taken some holiday abroad; asked her to let him pursue his university studies without pressure; had been more sociable and joined a martial arts club at university. In addition, he had been encouraged to move away from his mother by third parties. Mr Li hoped his mother would allow him to become more independent at this stage in his life but instead, he reported, she tried to maintain or even tighten her control over him. She accused him of being a traitor, despite the fact that he remained living with her. According to Mr Li, shortly before the alleged offence, his father had returned to China and this allowed his mother to give free reign to her feelings of anger.
… Mr Li provided a wealth of information regarding his upbringing and his relationship with his mother. The history he provided in this regard had subtleties of detail that persuaded me his account was accurate and the he did suffer an abusive relationship at the hands of his mother.
…
In my opinion, there are two concepts unique to the traditional Chinese society that unpins Mr Li’s background which are integral to understanding the dynamic that existed between him and his mother, as well as the basis from which their respective behaviours and mentality can be explained. These are: (1) ‘Mian Zi’ or Face, and (2) Filial Piety.
… Face is the basic guiding principle for how the Chinese relate to, and interact with one another. It enables the community to decide on the amount of respect and deference necessary to give to someone, based upon their professional successes, wealth, or social reputations. Consequently, it dictates an individual’s every decision and action taken during the course of their lives. There is therefore, minimal capacity for personal choice when one’s status becomes a reflection of their entire family, including their ancestors and descendants, and, when emotions such as shame and guilt are involved if an individual chooses not to comply with the “rules”. As such, the notion of ‘Gaining Face’ for the family is what underpins the achievement orientated parenting styles displayed by a large proportion of Asian parents, often at the expense of their children’s social and emotional development. On the other hand, Filial Piety represents a set of values and morals, such as showing care, respect, obedience, selflessness, and unreserved loyalty towards one’s parents, which are hardwired into every individual from birth. It is the core virtue in Confucius ideology, which is a deeply embedded way of thinking within the Chinese society that is believed to hold the fabric of their country together.
Mr Li’s years of submissive behaviours in spite of the emotional and physical abuse that he suffered, as well as his persistent attempts to meet his mother’s unreasonably high expectations, can largely be explained by the perspective of Filial Piety, and to a lesser extent, the concept of Face. It would also appear to be the reason why he empowered his parents to camouflage the true extent of their financial difficulties, the violent and volatile nature of his home environment, and their neglect and mistreatment of him.
[55] Appeal Book p 73 [12.10] and [12.16].
What may have motivated the victim’s behaviour was considered also by Dr Lim. She said:[56]
The concept of Gaining Face however, is considered to have been the catalyst behind Mr Li’s mother’s attitude towards his academic and musical attainments. In her mind, she would not have considered her demands to be unreasonable because she felt that she was fulfilling her duty to him and to her family by pushing Mr Li to be the best that he could be. Undoubtedly, Mr Li’s future achievements in life would also reflect positively on her as a mother, as it would elevate her reputation and social status amongst her family and friends, while replenishing their family wealth at the same time. As such, her primary motivations would have been to ensure that he remained fully under her control, so that she could guide him to fulfil her expectations and maintain the image that she had planned and carefully cultivated on his behalf. She would have perceived any attempts by him to assert his independence, or other people’s attempts to persuade her to moderate her expectations and relinquish some control, as unwelcomed interference and efforts to undermine her authority.
[56] Appeal Book p 91.
However she considered that while corporeal punishment remains an acceptable form of discipline in China the extent of the victim’s controlling behaviour could not be explained or justified by cultural features.
Substantially mitigate
I have identified the behaviour of the victim and the offender’s conduct of the applicant. Did the victim’s conduct substantially mitigate the offender’s conduct?
In my opinion it did. The controlling conduct of the victim must be seen in context. She effectively abandoned him for the first 10 years of his life. When she resumed responsibility for him she brought him to Australia where, without any ability to speak or understand English in any meaningful way, he initially struggled. The applicant witnessed the unhappy relationship between his father and the victim. Once his father returned to China, with only occasional visits to Australia, the victim took control over the applicant’s life as discussed.
The expert evidence, as discussed earlier, generally supported the applicant’s position that he suffered an abusive relationship.
Taking into account the entire history of the relationship I find that the victim’s conduct substantially mitigated the offender’s conduct. Thus the requirement of Section 32A(3)(c) is made out.
Discretion
The fact that the requirement of Section 32A(3)(c)(a) is made out simply enlivens the discretion found in Section 32A(2)(b); the question remains, whether, in the circumstances of this case, special reasons exist for fixing a non-parole period shorter than the prescribed period. Against the statutory framework, as discussed earlier, for a shorter non-parole period to be fixed, the victim’s conduct must be such that the imposition of the mandatory minimum non-parole period would be manifestly disproportionate to the circumstances of the offending and the moral culpability of the offender.[57] It is at this stage of the process that subjective factors both for and against the appellant are to be considered.[58]
[57] R v Hallcroft [2016] SASCFC 137.
[58] R v Frencken [2012] SASCFC 71
The psychiatric and psychological reports indicated that during his teenage years the appellant suffered a chronic depressed mood falling short of fulfilling the criteria for a depressive disorder. Upon travelling to China after the offending he suffered a period of depression for some months. Dr Brereton considered there were dependant and narcissistic elements to his personality.
The appellant is still a young man. He was aged 18 at the time of the offending. He has no prior criminal convictions. Prior to this offending he had led a productive life both academically and in helping out in his parents business.
However the Judge found that the appellant showed a “chilling” lack of insight and remorse. The Judge based this assessment on the appellant’s conduct after the offending. The appellant fled to Melbourne and engaged the services of a prostitute before travelling to China. The Judge did not accept the appellant’s evidence about the circumstances of his return from China. It must also be borne in mind that the Judge found that the killing was “in the more serious category of manslaughter”. That finding was open to the Judge.
Taking into account all of the matters in this case I am satisfied that the imposition of the mandatory non-parole period would not be disproportionate to the circumstances of the offending and the moral culpability of the offender. In my view “special reasons for fixing a non-parole period shorter than the prescribed period” do not exist. I would impose a non-parole period no different to that imposed by the Judge.
Orders
I would refuse permission to appeal on ground one.
I would grant permission to appeal on the additional ground and would dismiss the appeal.

Details

AGLC: R v Li [2016] SASCFC 152
Case: [2016] SASCFC 152
Decision Date: 22 December 2016

CaseChat Overview and Summary

The appeal concerned the sentence imposed on Mr Li for the manslaughter of his mother. The primary ground of appeal argued that the sentence was manifestly excessive, with a specific contention that the sentencing judge erred in finding that the killing resulted from a loss of self-control amounting to provocation. Mr Li also sought to amend his appeal to include a ground challenging the sentencing judge's interpretation and application of section 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) concerning the fixation of a non-parole period. The appeal was heard by Peek, Stanley, and Lovell JJ of the Supreme Court of South Australia, Court of Criminal Appeal.

The legal issues before the court were whether the sentencing judge erred in finding that the applicant killed his mother as a result of provocation, and whether the sentencing judge correctly applied section 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) when determining the non-parole period. Specifically, the court had to consider whether the sentencing judge was correct in her view that a person who has already received the benefit of a provocation defence for manslaughter should not receive a further discount for that same conduct when fixing a non-parole period.

The court dismissed the ground of appeal relating to provocation, agreeing with the sentencing judge's findings. Regarding the application of section 32A(3), the court granted permission to appeal but ultimately dismissed the appeal on this ground. The sentencing judge had expressed the view that Parliament did not intend for a person to receive a "double discount" for provocation, first by reducing the charge to manslaughter and then again when setting the non-parole period. However, the Court of Criminal Appeal referred to the decision in *R v Narayan*, which indicated that while the conduct of the victim may have mitigated the offence to manslaughter, it remains appropriate to consider that conduct when fixing the non-parole period, as it is a relevant fact. The court acknowledged that while the process of fixing a non-parole period has evolved, the punitive, protective, and rehabilitative purposes remain relevant.

Orders

Orders of the court

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Background

Background to the litigation

To understand the victim’s conduct it is necessary to set out the family background in some detail.Family background In his report of 11 January 2016, Dr Brereton, having noted that important details regarding the offending were disputed, stated:[52]Nevertheless, Mr Li provided a wealth of information regarding his upbringing and his relationship with his mother. The history he provided in this regard had subtleties of detail that persuaded me his account was accurate and that he did suffer an abusive relationship at the hands of his mother.[52] Appeal Book p 75. As already discussed the Judge accepted the fact that there was an abusive relationship although not the extent of the alleged physicality of that relationship suggested by the applicant. It is important however to understand the applicant’s background in its entirety. The applicant’s parents, during the 1980s when China opened up to the world, ran several successful businesses. Unfortunately, shortly after Mr Li was born, the businesses started to decline. This led to them spending larger amounts of time at work and raising the applicant was not a priority. A few months after his birth his parents handed custody of him to his maternal grandparents in Mongolia. For 10 years his grandparents became his primary carers and substitute parents. He rarely saw his parents; they visited Mongolia a couple of times a year. When attending they would give him a lot of gifts and this confused him because they “were strangers”. The visits were brief and did not provide him with an opportunity to bond with them. The applicant’s grandparents lived in relatively poor conditions whereas his parents lived a somewhat lavish lifestyle. On occasions when he visited his parents he remembered that their relationship was tumultuous and on occasions violent. At an early age he noted that his father had problems with alcohol and controlling his anger. He witnessed aggressive behaviour towards his mother. When the applicant was about 10 years old his parents decided to immigrate to Australia. He was unaware of the plan until his parents arrived in Mongolia to take him with them; he had no time to prepare. At that time he was in the middle of his primary school term in China. His grandparents were devastated by his parents’ decision to take the applicant away but their wishes were ignored. The applicant and his parents arrived in Adelaide in 2003. The applicant could not speak English and he was enrolled in a primary school in order for him to learn. He was subsequently transferred to the Parkside Primary School for his Year Five. At this time his home environment at that stage remained as volatile as when he had visited his parents during his early childhood. His father drank excessively and his parents argued on a regular basis. Mr Li witnessed violence towards his mother. Further the applicant experienced difficulty transitioning to the Australian lifestyle and the academic curriculum. He found the language barrier especially challenging and was bullied at school over his poor command of the language. His parents also relied on him to be their interpreter as they had never learnt English properly.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J (dissent)

While I consider this ground of appeal is arguable, thereby justifying a grant of permission to appeal on this ground, for the above reasons I would nonetheless dismiss the appeal. Conclusion I would refuse permission to appeal on ground 1. I would grant permission to appeal on the s 32A ground but dismiss the appeal on that ground. LOVELL J: I have had the advantage of reading Stanley J’s judgment. I gratefully adopt his summary of the facts in relation to the offending in this matter. I do not need to repeat those matters. There were a number of grounds of appeal. However the main ground of appeal, ground nine, was that the sentence was manifestly excessive. It was argued as a particular of ground nine that the learned sentencing Judge erred in making specific findings beyond reasonable doubt that the applicant killed his mother as a result of a loss of self-control amounting to the partial defence of provocation. In relation to that ground I would dismiss that ground of appeal and for the reasons expressed by Stanley J. The applicant was granted leave to amend his notice of appeal to include the ground that the sentencing Judge erred in her interpretation and application of s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”). When fixing the non-parole period the learned sentencing Judge stated:[32]I have considered whether any provision of s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) applies to you. However, I cannot think that Parliament intended that a person who has already received the benefit of a partial defence of provocation by the verdict of guilty to the crime of manslaughter should, in effect, be given a double discount for that very same conduct when imposing a non-parole period.[32] Appeal Book pp 142-143. In R v Narayan[33] the Court did not accept that reasoning. [33] [2011] SASCFC 61. Doyle CJ (with whom Nyland and David JJ agreed) stated:[34]On appeal, Mr Kimber took a somewhat different approach. He submits that Mr Narayan’s conduct is already accounted for by the verdict of guilty of manslaughter on the basis of provocation. He submits that the same conduct cannot be brought to account again when considering the non‑parole period, or in the alternative that it is entitled only to minimal weight. He submits that Mr Narayan’s conduct has already had its effect, in reducing the offence to manslaughter and thereby attracting a sentencing range quite different from that in the case of murder.I do not agree. As the plurality said in R v A, D, referring to the mandatory period:[33] The court must consider whether to fix a non-parole period that is longer, the same as or shorter than this period. It will not always be necessary to break the matter up into three separate questions. Experience indicates that often only one of the three options will be realistically open. But in the end they are the options open to the court. The task of the court is no longer to fix the appropriate non-parole period according to established principles.[34] However, while there are distinct differences between the fixation of a non‑parole period according to established principles, and according to the new provisions, the process remains one in which the punitive, protective and rehabilitative purposes of fixing a non-parole period remain relevant: cf R v Barnett at [49] Vanstone J.Although Mr Narayan’s conduct on the morning in question, coupled with Mrs Narayan’s loss of control, mean that the offence is manslaughter rather than murder, it is still appropriate when considering the non-parole period to bear in mind that the conduct of Mr Narayan substantially mitigated Mrs Narayan’s conduct. That is the fact. Her conduct was the sudden loss of control, resulting in her throwing the petrol and then igniting it.[34] R v Narayan [2011] SASCFC 61 [47]-[48].

Ratio Decidendi

Legal Principle Established

Established by:

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Actions

Citations

R v Li [2016] SASCFC 152

Most Recent Citation

R v Gojanovic [2002] VSC 117

Cases Citing This Decision

R v Maroroa [2020] SASCFC 68
Citation 1 (Para 6)

…y excessive self-defence the victim’s conduct must necessarily have substantially mitigated the offender’s conduct. [5] [2011] SASCFC 61. [6] [2016] SASCFC 152.…
R v Zefi [2017] SASCFC 121
Citation 2 (Para 7)

…r the benefit of any reasonable doubt when forming that view.[1] [1] Cheung v The Queen (2001) 209 CLR 1 at 9-11; R v Clancy [2013] SASCFC 63; R v Li [2016] SASCFC 152; R v Martin (2007) 99 SASR 213; R v Stehbens (1976) 14 SASR 240 at 245; R v Thompson (1975) 11 SASR 217.…
R v Gojanovic [2002] VSC 117
Citation 3 (Para 1)

…The law relating to the admissibility of confessional evidence is relatively well settled. In R v. Li & Anor (1993) 2 V.R. 80 I endeavoured to set it out. A similar exercise was undertaken in R v. Heaney & Welsh (1998) 4 V.R. 636, following upon the High Court decision in R v. Swaffield ; Pavic v. R…

Cases Cited

Statutory Material Cited

R v Hallcroft [2016] SASCFC 137
Citation 1 (Para 3)

…ranting a non-parole period less than the prescribed minimum may also be found in offences higher on the scale of objective seriousness… [29] [2016] SASCFC 137. [30] [2016] SASCFC 137 at [58] and [60].…
Lindsay v The Queen [2015] HCA 16
Citation 2 (Para 14)

…kill or to do grievous bodily harm and act upon that intention, as the accused did, so as to give effect to it. (Footnotes omitted) [51] Lindsay v R (2015) 255 CLR 272, 279 [16].…
R v Kreutzer [2013] SASCFC 130
Citation 3 (Para 16)

…ror, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal. [5] (1936) 55 CLR 499. [6] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215. Manifest excess?…
R v Groth [2013] SASCFC 108
Citation 4 (Para 1)

…non-parole period for an offence at the lower end of the range of objective seriousness for offences to which it applies. [Citation omitted]. [27] [2013] SASCFC 108. [28] [2013] SASCFC 108 at [35].…
Wickey v McVicar [2012] ACTCA 38
Citation 5 (Para 15)

…quiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extra…
R v Frencken [2012] SASCFC 71
Citation 6 (Para 14)

…t which point the other way are brought to account. I do not read the reasons of the plurality in R v A, D as saying anything to the contrary. [25] [2012] SASCFC 71. [26] [2012] SASCFC 71 at [18].…
R v Narayan [2011] SASCFC 61
Citation 7 (Para 8)

…ct. That is the fact. Her conduct was the sudden loss of control, resulting in her throwing the petrol and then igniting it. [19] [2011] SASCFC 61. [20] [2011] SASCFC 61 at [46]-[48].…
R v Hansen [2011] SASCFC 10
Citation 8 (Para 18)

…ings of fact for the purpose of fixing sentence? [9] Markarian v The Queen [2005] HCA 25 at [30] – [31], (2005) 228 CLR 357 at 372. [10] R v Hansen [2011] SASCFC 10 at [7], (2011) 206 A Crim R 54 at 56. [11] (1987) 49 SASR 248 per King CJ at 248. See also R v Goulding [2007] SASC 60 per Gray J at [18].…
R v A, D [2011] SASCFC 5
Citation 9 (Para 12)

…The application of s 32A was first considered in R v A, D .[21] Doyle CJ, Duggan, Anderson and White JJ said:[22] [21] [2011] SASCFC 5, (2011) 109 SASR 197. [22] [2011] SASCFC 5 at [33]-[43], (2011) 109 SASR 197 at 204-205. The court must consider whether to fix a non-parole period that is longer, the same as or s…
R v Jongewaard [2009] SASC 346
Citation 10 (Para 15)

…ast kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy". [3] [2009] SASC 346, (2009) 266 LSJS 283. [4] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.…
The Queen v Morse [2009] NZCA 51
Citation 11

…988 (SA) s 32(5)(ba), s 32A, referred to. R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; The Queen v Morse (1979) 23 SASR 98; Markarian v The Queen (2005) 228 CLR 357; R v Hansen (2011) 206 A Crim R 54; In R v Weinman (1987) 49 SASR 248; R v Goulding [2007] SASC 60…
R v Martin [2007] SASC 336
Citation 12 (Para 2)

…The principle was explained in R v Martin [12] where Gray J, with whom Sulan and David JJ agreed, said:[13] [12] [2007] SASC 336, (2007) 99 SASR 213. [13] [2007] SASC 336 at [58] – [60], (2007) 99 SASR 213 at 230 – 232. Where, following a trial by jury, a person has been convicted of a criminal offence, the power…
R v Goulding [2007] SASC 60
Citation 13 (Para 18)

…57 at 372. [10] R v Hansen [2011] SASCFC 10 at [7], (2011) 206 A Crim R 54 at 56. [11] (1987) 49 SASR 248 per King CJ at 248. See also R v Goulding [2007] SASC 60 per Gray J at [18].…
Markarian v The Queen [2005] HCA 25
Citation 14

…to. R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; The Queen v Morse (1979) 23 SASR 98; Markarian v The Queen (2005) 228 CLR 357; R v Hansen (2011) 206 A Crim R 54; In R v Weinman (1987) 49 SASR 248; R v Goulding [2007] SASC 60; R v Martin (2007) 99 SASR 213; R v Nara…
R v De Simoni [1981] HCA 31
Citation 15 (Para 2)

…o account circumstances of aggravation which would have warranted a conviction for a more serious offence. [18] R v De Simoni (1981) 147 CLR 383 at 389.…

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