R v Mark - [2019] SASCFC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MARK
[2019] SASCFC 48
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Doyle)
9 May 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against a sentence imposed by a judge of the District Court.
The appellant appeals against a sentence of 17 months imprisonment with a non-parole period of eight months for the offence of aggravated assault, and breach of a suspended sentence bond.
The aggravated assault offence involved the appellant punching his domestic partner with a closed fist to the face. At the time, there was an intervention order in place which allowed the appellant and his domestic partner to have contact with each other but with the condition that the appellant not assault, threaten or intimidate her. The appellant entered a guilty plea to that charge and the matter was transferred to the District Court for sentencing with the breached bond and other matters.
The appellant was 22 years of age at the time of the offending and 23 years of age at the time of sentence. The appellant has a history of criminal offending and not complying with court orders however has no prior convictions for assault, aggravated assault or offences of violence.
The judge imposed a sentence of 11 months for the aggravated assault and revoked the suspended sentence and ordered that the six-month sentence that was the subject of the good behaviour bond be served cumulatively on the sentence for the aggravated assault. In fixing sentence for the aggravated assault the judge started with a notional sentence of eighteen months reduced by 30 per cent for the appellant’s plea of guilty and a further one month and 15 days for time served.
There are two grounds of appeal. The first is that the sentence imposed for the aggravated assault is manifestly excessive. The second is that the judge erred in sentencing the appellant on the basis that the offence was committed against a background of previous domestic violence.
Held, per Stanley J (Peek and Doyle JJ agreeing), allowing the appeal, setting aside the sentence imposed and resentencing the appellant:
1. A starting point of 18 months was outside the permissible range of sentences for this offending and this offender.
2. The judge erred in sentencing the appellant on the basis that that offence of aggravated assault was committed against a background of previous domestic violence.
3. The appellant is resentenced to a term of imprisonment of seven months for the offence of aggravated assault. The sentence is to be served cumulatively on the sentence of six months imprisonment for the previous suspended sentence resulting in a total sentence of 13 months. A non-parole period of eight months is fixed. The head sentence and non-parole period are backdated to 19 May 2018.
Criminal Law Consolidation Act 1935 (SA) s 20; Criminal Law (Sentencing) Act 1988 (SA) s 9C; Sentencing Act 2017 (SA) s 22, referred to.
Bugmy v The Queen (2013) 249 CLR 571; House v The King (1936) 55 CLR 499; R v Jongewaard [2009] SASC 346; R v Kreutzer (2013) 118 SASR 211; R v Saunders [2017] SASCFC 86; The Queen v Morse (1979) 23 SASR 98; Wong v The Queen (2001) 207 CLR 584, discussed.
Hili v The Queen (2010) 242 CLR 520; Munda v Western Australia (2013) 249 CLR 600; R v Lennon (2003) 86 SASR 295; R v Nelson [2017] SASCFC 40; R v Postolovski [2016] SASCFC 69; R v Wilkinson (2008) 101 SASR 21, considered.

R v MARK
[2019] SASCFC 48
Court of Criminal Appeal: Peek, Stanley and Doyle JJ

PEEK J: I would allow the appeal. I agree with the orders proposed by Stanley J and with his reasons.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant appeals against a sentence of 17 months imprisonment with a non-parole period of eight months for the offence of aggravated assault, and breach of a suspended sentence bond.
The judge imposed a sentence of 11 months for the aggravated assault and revoked the suspended sentence and ordered that the six-month sentence that was the subject of the good behaviour bond be served cumulatively on the sentence for the aggravated assault.
The assault was aggravated because it was committed against his domestic partner. In fixing sentence for the aggravated assault the judge started with a notional sentence of eighteen months reduced by 30 per cent for the appellant’s plea of guilty and a further one month and 15 days for time served. The sentence was backdated to commence from 19 May 2018.
There are two grounds of appeal: first, that the sentence imposed for the aggravated assault is manifestly excessive; second, that the judge erred in sentencing the appellant on the basis that the offence was committed against a background of previous domestic violence.
Circumstances of the offending
The aggravated assault occurred on 15 April 2018. The appellant punched his domestic partner, Ms Trevorrow, with a closed fist to the face. This caused a swollen cheekbone. It is not alleged that Ms Trevorrow sought or required medical treatment and there is no evidence of ongoing injury. At the time of the assault there was an intervention order in place between the appellant and Ms Trevorrow which allowed them to have contact with each other but with the condition that the appellant not assault, threaten or intimidate Ms Trevorrow. The appellant was arrested on 19 May 2018. He was refused bail and has remained in custody since then. The appellant entered a guilty plea to the charge on 17 September 2018 in the Murray Bridge Magistrates Court and the matter was transferred to the District Court for sentencing with the breached bond and other matters. Ms Trevorrow did not provide a victim impact statement.
The appellant’s personal circumstances
The appellant was 22 years of age at the time of the offence. He was 23 years of age at the time of sentence.
The appellant is an Aboriginal man who was born and attended school at Murray Bridge. He completed Year 9. The appellant experienced a traumatic childhood. At a young age he was exposed to his parents’ use of drugs and the domestic violence that punctuated their relationship. At some point the appellant’s mother moved to Adelaide to escape the relationship but left the appellant in Murray Bridge. Unfortunately the appellant has abused alcohol and illicit substances, particularly methylamphetamine. He has a history of criminal offending dating back to his youth for offences including theft, property damage, driving offences, disorderly behaviour and breach of bail.
The appellant has a long history of not complying with court orders. He was first given a suspended sentence in 2014. He was placed on a bond. He subsequently breached that bond and was sentenced to a short term of imprisonment. That sentence was suspended and he was placed on another bond in 2015. The appellant breached that bond and was given a further suspended sentence bond which was breached by this offending. The appellant has never been sentenced to an immediate custodial penalty of longer than four days, although he has spent time in custody on remand including seven and a half months in 2014 for aggravated serious criminal trespass charges. However, the appellant has no prior convictions for assault, aggravated assault or offences of violence.
The appellant’s father died in February 2017. The appellant’s first child, who is the product of the relationship with Ms Trevorrow, was born on 15 October 2017. Prior to his arrest in May 2018 the appellant had been living with and assisting Ms Trevorrow in the care of their child as well as her two sons from a previous relationship who are aged two and three years.
The sentencing judge undertook a s 9C conference.[1] That conference was attended by Mr Paul Hills, a wellbeing counsellor, who told the judge that he was impressed with the value he saw the appellant place on his family and his relationship with his child and his partner’s children. He saw evidence of the appellant taking an active interest at home. He considered the appellant required assistance with his anxiety, grief and addiction issues. Mr Hills was prepared to continue to offer the appellant support when he is released from custody.
[1] Criminal Law (Sentencing) Act 1988 (SA) (Repealed), s 9C. The equivalent provisions are contained in s 22 of the Sentencing Act 2017 (SA).
While the appellant is now eligible for parole he has not applied as he is undergoing a domestic violence prevention course in prison which he wishes to complete before applying for parole. The Court was informed that the course will be completed in June 2019.
Sentencing remarks
The judge set out the circumstances of the appellant’s offending and his personal circumstances and antecedent history.
The judge observed that the appellant has a long history of not complying with court orders and does not seem to have been deterred by any of the sentences he has received in the past. That meant that he had to impose a sentence which did deter the appellant from further offending in the future, for his own sake and for the sake of the community. The judge referred to the need for appropriate punishment and for a sentence that would reflect the need for personal and general deterrence. Nonetheless, the judge considered that an appropriate opportunity for rehabilitation should be provided given the appellant’s age.
In sentencing for the offence of aggravated assault the judge said:
This offence is by far the most serious of your offending to date. Domestic violence is a cause of great concern in the community, I am sure you are now aware of that. Many women are severely harmed, and even killed, as a result of domestic violence in the community and the community has expressed great concern that the courts should do everything we can to discourage that sort of behaviour by men towards women.
In this regard, the offence of aggravated assault was committed against a background of previous domestic violence. I note, however, that you have no prior convictions for assault specifically.
Principles 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[2] where Doyle CJ said:[3]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed … 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:
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, 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”.
[Citations omitted].
[2] [2009] SASC 346.
[3] [2009] SASC 346 at [40].
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[4] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer[5] 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.
[4] (1936) 55 CLR 499.
[5] [2013] SASCFC 130, (2013) 118 SASR 211.
[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 with 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.
Manifest excess is a conclusion. Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, as the plurality said in Wong v The Queen:[9]
[I]intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
[9] [2001] HCA 64 at [58], (2001) 207 CLR 584 at 605.
As the High Court said in Hili v The Queen,[10] “that is a conclusion that does not admit of lengthy exposition”.
[10] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 539.
Aggravated assault
The maximum penalty for the offence of aggravated assault pursuant to s 20 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) is three years imprisonment.
Consideration
Ms Sibree, counsel for the appellant, submits that this offence was at the lower end of the scale of seriousness. It was impulsive and constituted of a single strike, rather than an ongoing course of conduct. There were no weapons used or children present. The victim did not require medical treatment. There was no evidence of ongoing injury. Those factors can be accepted but I reject the submission that the offence was at the lower end of the scale of seriousness.
What occurred here was a single punch to the face. That is a serious assault. The courts are very conscious that such an assault could have fatal consequences.
In my view the sentencing judge was correct in considering that this offence required an immediate term of imprisonment. The appellant’s previous criminal history and his poor compliance with bonds and court orders made that inevitable. At issue is whether a starting point of 18 months for a first offence of violence resulted in a sentence that was outside the permissible range for this offending and this offender.
This Court has recognised on numerous occasions the particular importance of both specific and general deterrence in sentencing for offences of domestic violence.[11] In R v Nedza[12] Nicholson J said:[13]
[W]here offending of this nature occurs in the context of domestic violence, both personal and general deterrence must play a significant role in the sentencing process. Domestic violence is all too frequent in our society and so often occurs in secret or goes unreported. Where the authorities do become aware of domestic violence it must be met with condign punishment. It also is important that the opportunity be taken to bring home to others who might be like minded that the courts will not tolerate domestic violence, particularly where, as is typical, it is meted out to physically weaker or defenceless children and women.
[11] See R v Lennon [2003] SASC 337 at [12] (2003) 86 SASR 295 at 297; R v Wilkinson [2008] SASC 172 at [28], (2008) 101 SASR 21 at 27; R v Postolovski [2016] SASCFC 69 at [50]; R v Nelson [2017] SASCFC 40 at [44], (2017) 266 A Crim R 121 at 130-131.
[12] [2013] SASCFC 142.
[13] [2013] SASCFC 142 at [87].
In this case the offending is rendered more serious because it was committed in the face of an intervention order intended to provide the victim with protection from the very assault that occurred. I repeat what I said in R v Saunders.[14]
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection. If that protection is to be effective and orders of the court or conditions in bail agreements not to be mere scraps of paper, the court must impose punishments for the breach of those orders or agreements which will deter those who contravene the orders or agreements and others who might be minded to do so from offending in that way.
[Citation omitted].
[14] [2017] SASCFC 86 at [27].
The offending and the appellant’s poor response to leniency previously extended to him must be considered in the light of his life circumstances, including his traumatic childhood, his entrenched social disadvantage and his youth. However, these are not the only considerations the court must weigh in imposing sentence. In Munda v Western Australia[15] French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said:[16]
Mitigating factors must be given appropriate weight, but they must not be allowed “to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”. It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.
[Citations omitted].
[15] [2013] HCA 38, (2013) 249 CLR 600.
[16] [2013] HCA 38 at [53], (2013) 249 CLR 600 at 619.
Of particular relevance, their Honours in Munda further said:[17]
A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.
[17] [2013] HCA 38 at [55], (2013) 249 CLR 600 at 620.

The Court must give proper regard to the need for community safety and deterrence. In Bugmy v The Queen[18] French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said:[19]
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[18] [2013] HCA 37, (2013) 249 CLR 571.
[19] [2013] HCA 37 at [44], (2013) 249 CLR 571 at 595.
Ultimately, notwithstanding the seriousness of this offending, I consider that for a first offence of violence, albeit an aggravated offence, a starting point of 18 months is too high. It is outside the permissible range of sentences for this offending and this offender.
Further, I consider that the judge erred in sentencing the appellant on the basis that this offence of aggravated assault was committed against a background of previous domestic violence. The evidence before the Court was insufficient to permit the judge to sentence on that factual basis and that factual basis was not conceded by the appellant.
Accordingly, the sentence imposed must be set aside and the appellant resentenced.
Resentencing
In my view the appropriate starting point for this offending is a term of imprisonment of 12 months. The appellant is entitled to a reduction of 30 per cent on this sentence for his plea of guilty. In addition, he is entitled to credit for one month and 15 days spent in custody.
That results in a sentence for the offence of aggravated assault of seven months imprisonment. That sentence must be served cumulatively on the six months for the previous suspended sentence. That leaves a total sentence of 13 months. I would fix a non-parole period of eight months given that this has now expired and in any event was, as the judge recognised, shorter than usual having regard to the appellant’s age. I would encourage the appellant to complete the domestic violence prevention course he is undertaking. The head sentence and the non-parole period are back dated to 19 May 2018.
Conclusion
I would allow the appeal. I would set aside the sentence imposed. I would resentence the appellant to a term of imprisonment of seven months for the offence of aggravated assault. That sentence is to be served cumulatively on the sentence of six months imprisonment for the previous suspended sentence resulting in a total sentence of 13 months. I fix a non-parole period of eight months. The head sentence and non-parole period are backdated to 19 May 2018.
DOYLE J: I agree with the reasons of Stanley J, and with the orders he has proposed.