R v Maroroa - [2020] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAROROA
[2020] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Nicholson)
16 July 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCING
Application for permission to appeal against sentence by the Director of Public Prosecutions (the DPP).
The respondent was charged with murder, to which he pleaded not guilty and the matter proceeded to trial before jury. The jury found the respondent not guilty of murder, but guilty of manslaughter.
The respondent was sentenced to nine years imprisonment. A non-parole period of six years was fixed. The non-parole period fixed was less than the prescribed minimum, being four-fifths of the head sentence, after the sentencing Judge found special reasons in accordance with ss 48(2)(b) and 48(3)(a) of the Sentencing Act 2017 (SA) (“the Sentencing Act”) for fixing a non-parole period that was shorter than the prescribed period.
The DPP now seeks permission to appeal on two grounds:
1. That the sentence imposed by the Judge was manifestly inadequate; and
2. That the Judge erred in finding special reasons warranting a non-parole period of less than four-fifths of the head sentence.
Held per Kelly J (Peek and Nicholson JJ agreeing), refusing permission to appeal on ground 1:
1. The uncertainty of the factual circumstances here surrounding the actual commission of the crime is a factor which militates against permission being granted (at [35]).
2. Although a head sentence of nine years is low, the sentence is not so manifestly inadequate as to require this Court’s intervention (at [36]).
Held per Kelly J (Peek and Nicholson JJ agreeing) in relation to ground 2:
1. For a judge to reach the state of satisfaction required under s 48(2)(b) of the Sentencing Act there must be some proper factual basis on which the conduct of both the victim and the offender can be evaluated (at [41]).
2. There was nothing in the proven circumstances surrounding the commission of this offence on which the Judge could have been satisfied in accordance with the requirements in ss 48(2)(b) and 48(3)(a) of the Sentencing Act that there were special reasons to depart from the minimum mandatory non-parole period (at [81]).
3. Even if there had been a proper basis to find special reasons, none of the circumstances referred to by the Judge warranted the exercise of the discretion in s 48(3) of the Sentencing Act (at [82]).
Held per Nicholson J (Peek J agreeing), refusing permission to appeal on ground 2:
1. The imposition on appeal of the correct non-parole period is not required, in order to give proper guidance to other courts or otherwise to satisfy the purposes of a successful prosecution appeal (at [95]).
2. The prosecution has not established sufficiently strong reasons of public policy in this case so as to require that permission to appeal be allowed in the face of the countervailing public interest in not twice vexing the respondent (at [97]).
Held per Kelly J (in dissent), granting permission to appeal and allowing the appeal on ground 2:
1. This Court would not be fulfilling its duty upon a prosecution appeal to leave the non-parole period uncorrected (at [83]).
2. A non-parole period of seven years, two months and 11 days, being four-fifths of the head sentence, should be fixed (at [84]).
Sentencing Act 2017 (SA) ss 47, 48; Criminal Law (Sentencing) Act 1988 (SA) s 32A; Criminal Appeal Act 1912 (NSW) s 5D, referred to.
R v Nemer (2003) 87 SASR 168; Tones v The Queen [2017] VSCA 118; R v Buttigieg [2020] SASCFC 38; R v Whyte (2004) 7 VR 397; Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606; CMB v Attorney-General (NSW) (2015) 256 CLR 346; R v Hernando (2002) 136 A Crim R 451; R v Faber [2020] SASCFC 49; R v Borkowski (2019) 195 A Crim R 1, discussed.
Everett v The Queen (1994) 181 CLR 29; R v Hallcroft (2016) 126 SASR 415; R v Narayan [2011] SASCFC 61; R v Li [2016] SASCFC 152; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227 ; R v Kong (2013) 115 SASR 425; R v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2003) 212 CLR 629; Filippou v The Queen (2015) 256 CLR 47; MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180; R v Kreutzer (2013) 118 SASR 211; Quinn v The Queen (2011) 244 CLR 462, considered.

R v MAROROA
[2020] SASCFC 68
Court of Criminal Appeal: Kelly, Peek and Nicholson JJ
KELLY J.
Introduction

The respondent, Mr Paul Beveridge Maroroa, was charged with the murder of Mr Robert Sabeckis (“the deceased”). He pleaded not guilty to the charge and the matter proceeded to trial before jury. The jury found the respondent not guilty of murder, but guilty of manslaughter.
On 21 February 2020, the respondent was sentenced to nine years imprisonment. A non-parole period of six years was fixed. The non-parole period fixed was less than the prescribed minimum, being four-fifths of the head sentence, after the sentencing Judge found special reasons in accordance with ss 48(2)(b) and 48(3)(a) of the Sentencing Act 2017 (SA) (“the Sentencing Act”) for fixing a non-parole period that was shorter than the prescribed period.
The Director of Public Prosecutions (“the appellant”) now seeks permission to appeal on two grounds. The appellant asserts that the sentence imposed by the sentencing Judge was manifestly inadequate (ground 1), and that the Judge erred in finding special reasons warranting a non-parole period of less than four-fifths of the head sentence (ground 2).
Background
On 13 January 2000, in the early hours of the morning, the respondent and the deceased were at the Gull Rock carpark near Maslin Beach. The deceased was seated in his car in a t-shirt and his underpants. The respondent approached the deceased. The deceased reacted to the respondent’s approach in a manner that resulted in the two engaging in a physical altercation. During the course of that altercation, the respondent fired three shots from a Boito shotgun towards the deceased, two of which hit him at a close range. One of the projectiles wounded the deceased’s right forearm. The other, dubbed the “fatal shot” by the forensic pathologist, wounded his upper left chest area and ruptured his axillary artery.
The respondent did not attempt to render any assistance to the deceased after he shot him. Rather, he fled the scene in the deceased’s vehicle.
The respondent crashed and abandoned the vehicle. He discarded the shotgun, along with his blood-stained jacket, in the paddock of a private property near Port Willunga. He later disposed of several other items, including blood-stained jeans, a towel, and ammunition, by placing them inside a shotgun bag and tossing the bag into the ocean.
At about 1.29 am, ambulance officers attended the scene after receiving a call from a member of the public. The officers located the body of the deceased at the northern end of the carpark.
The deceased was found lying on his back over a speed hump. His limbs were spread apart and his genitals were exposed. He was wearing a black shirt, which had been torn in the front, along with a pair of black underpants that were strung around his ankles. A considerable amount of blood was present around, and covering, his body.
The crime scene examiner located a trail of blood throughout the carpark and the adjacent grassland. The examiner noted transfer bloodstains from a left foot. The bloodstain pattern indicated that the deceased had run from the grassland near the western side of the carpark across the carpark in a south-easterly direction, had curved back in a north-westerly direction, and then proceeded north where his body was found.
Following a post-mortem examination, the pathologist observed that the deceased had sustained the following notable injuries: a shotgun wound to the left side of his chest with lacerations to his axillary artery; a shotgun wound to his right forearm; a laceration to the right side of his forehead; and a minor abrasion to his right knee. It was impossible to determine the sequence of injuries on the basis of the post-mortem findings alone.
The deceased’s death was attributed to the loss of blood caused by the shotgun wound to his upper left chest. The pathologist noted that the laceration of the axillary artery would not have resulted in instantaneous death. Rather, it would have taken at least several minutes until the deceased had lost enough blood so as to cause him to go into cardiac arrest. Importantly, the deceased may have survived if prompt medical attention had been sought following this injury.
The pathologist also made observations about the abrasions to the deceased’s right knee and the laceration to his forehead. In respect of the abrasions, it was noted that the abrasions contained debris, comprised of sand vegetation, which suggested that the deceased had fallen on that knee in the grassland. The laceration to his forehead was deemed to be consistent with the theory that the deceased received a blow from the butt of the shotgun.
On 6 April 2000, the respondent departed Australia and travelled to New Zealand. He remained resident in New Zealand until he was arrested and extradited to South Australia on 23 March 2018. His arrest was catalysed by a match between his previously recorded DNA and that of the DNA of the “unknown contributor” that was located on the airbag of the deceased’s car, the shotgun, the jacket, the butt of the shotgun, and the jeans.
The respondent was charged with murder upon arriving back in South Australia. He pleaded not guilty to the charge.
Trial
The trial commenced on 11 November 2019 before a jury.
At the trial the respondent gave evidence that he shot the deceased in self-defence. He claimed that prior to the shooting, the deceased had threatened to rape, kidnap, and kill him. Out of fear for his own safety, he fired three projectiles towards the deceased in order to defend himself.
The trial Judge directed the jury on the alternative verdict of manslaughter on three possible bases. The first was manslaughter by unlawful and dangerous act, the second was manslaughter by reason of provocation, and the third was manslaughter by excessive self‑defence.
The jury returned a verdict of not guilty to the charge of murder, but guilty of manslaughter.
In light of the jury verdict, it was necessary for the sentencing Judge to make factual findings as to how the offence of manslaughter was committed. The Judge determined that it was appropriate to sentence the respondent on the basis that he fatally shot the deceased in circumstances amounting to excessive self‑defence.
Legal principles to be applied in respect of prosecution appeals
The approach to be adopted in a prosecution appeal against sentence is well established.
The circumstances in which permission to appeal will be granted to the prosecution are confined to rare and exceptional cases.[1]
[1] Everett v The Queen (1994) 181 CLR 295 at 299-300 (per Brennan, Deane, Dawson and Gaudron JJ).
Even if an applicant can establish that a sentence is manifestly inadequate, it does not follow that permission to appeal should necessarily be granted.
Permission will be granted only when it is necessary to determine a matter of principle, to correct an error of principle, to establish or maintain adequate standards of sentence, or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.
As Doyle CJ said in R v Nemer:[2]
… if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.
[2] (2003) 87 SASR 168 at [24].
In this matter, in seeking permission to appeal in respect of both grounds of appeal, the Director argued that four factors support the granting of permission. The first factor is that sentencing for offences of homicide is a matter of public importance;[3] second, that the current matter raises a principle of wider importance concerning the correct principles to be applied when sentencing an offender who has rehabilitated during the period when he was avoiding apprehension; third, the sentence imposed was so far below what is appropriate for an offence of manslaughter by excessive self‑defence that it calls for correction and to allow the sentence to stand would shake public confidence in the administration of justice; fourth, and finally, that if the sentence imposed is not corrected it would significantly erode the standards of sentencing for offences of this type.
[3] R v Hallcroft (2016) 126 SASR 415 at [78] (per Kourakis CJ, Peek, Stanley, Lovell and Doyle JJ agreeing).
For the reasons which follow, I would grant the appellant permission to appeal in respect of ground 2, and allow the appeal on ground 2. I would refuse permission to appeal in respect of ground 1.
Ground 1 - Was the head sentence imposed manifestly inadequate
It has been observed on many occasions that the spectrum of culpability across offences of manslaughter is so wide that it is not possible to point to sentences in other cases to provide a meaningful yardstick by which to assess the adequacy of a sentence imposed for manslaughter.
Indeed, the range of facts in which an offence of manslaughter may be committed might range from something akin to an accident to something which falls just short of murder. It is therefore necessary to pay careful attention to the facts, and to analyse the proven acts of an offender, to determine where the offence sits on the scale of seriousness.
During sentencing submissions, the respondent’s counsel submitted that the Judge should make a number of key factual findings on which to sentence the respondent. He submitted that the respondent’s offending should be characterised as being at the lower end of the range for an offence of its type, being manslaughter by excessive self-defence, and urged the Judge to make the following key findings, which he contended were consistent with the jury’s verdict:
1.The defendant attended at the Gull Rock carpark (‘the carpark’) to deliver a shotgun to the deceased.
2.The defendant did not steal the shotgun from [DC’s] house.
3.At the carpark, the deceased asked the defendant to load the shotgun.
4.The deceased pointed a loaded shotgun at the defendant, tapped him on the head with it, told him he was a ‘dumb cunt’ and then told him to get in the back of the car and take his pants down (the genesis of the altercation).
5.The defendant thought he was going to be raped and possibly killed.
6.The defendant struggled with the deceased over the firearm, eventually taking it off him.
7.The defendant pointed the firearm at the deceased and told the deceased to move away from the car. The deceased laughed telling him ‘he was not going to get away’ and that he (the defendant) didn’t have the guts to shoot.
8.The firearm accidentally discharged the first time, hitting the deceased in the arm. The defendant was unaware that he had shot the deceased.
9.The second shot that was fired was either accidental or was fired ‘off into nowhere’ (not at the deceased) shortly after the first shot.
10.The defendant reloaded the firearm after the first two shots were fired. He did so because he feared a further attack by the deceased, possibly with a weapon.
11.After the defendant reloaded the gun (and before the fatal shot) there was a struggle between the two men during which the defendant firstly, hit the deceased (as opposed to shooting him) and secondly, after he hit the deceased he stepped back, pointed the gun at the deceased’s face, and said ‘It’s done, it’s over, just fucking stop’ - the deceased did not stop.
12In the seconds before the fatal shot was fired, the deceased was striking at the deceased [sic] and trying to get the firearm off him.
13.The defendant genuinely and reasonably thought he needed to shoot the deceased for a defensive purpose.
14.The act of shooting the deceased was not reasonably proportionate.
Significantly, the Judge declined to make any of the suggested factual findings. Instead, his Honour said:
While I left three bases for a verdict of manslaughter to the jury, I consider it appropriate to sentence you on the basis that you killed Mr Sabeckis in circumstances amounting to excessive self-defence, rather than unlawful and dangerous act manslaughter or provocation.
In coming to this view, I do not accept as a reasonable possibility various aspects of the version of events that you gave in your evidence. In particular, I do not accept that you were given the shotgun in the circumstances that you described. I do not accept that you entered the car park to merely deliver the shotgun to Mr Sabeckis. I do not accept that Mr Sabeckis threatened to rape and kidnap you in the circumstances you described. For the reasons put by the prosecutor in her closing address, I found your evidence in these respects to be implausible and in my view tailored to meet the case against you.
However, in circumstances where I am not prepared to rely upon the detail of your evidence when not supported by other evidence, I am left with little more than the crime scene to determine what happened and hence your level of culpability.
The only factual findings which the Judge did make were as follows:
There is no doubt that you shot Mr Sabeckis dead in the Maslin’s Beach car park in the early hours of 13 January 2000. You fired three shots from the Boito shotgun that you took to the car park that night, two of which hit Mr Sabeckis from a very close range. One hit him in the right forearm and the second, the fatal shot, hit him in the upper left chest area. You did not make any attempt to render any assistance to him; rather you left him to die in the car park.
However, beyond these bare facts, which you accepted in your evidence, it is difficult to reach any firm conclusions as to the precise circumstances of your crime. By the jury’s verdict, you did not kill Mr Sabeckis in circumstances amounting to murder, but you did so in circumstances that amounted to manslaughter.
The Judge said that he was unable to make any finding as to the circumstances in which the respondent came to be in possession of the shotgun, why he took it to the carpark at Maslin Beach, or what he intended to do with the gun. He also declined to make any finding as to how the deceased’s underpants came to be around his ankles as evidenced in the crime scene photographs.
Beyond a finding that the deceased “reacted in some way that resulted in a physical altercation” between the respondent and the deceased, the Judge said he was unable to determine precisely how the altercation unfolded, and the extent to which it differed from the account the respondent had given in evidence.
It was never argued by the prosecution that it was not open to the Judge to sentence the respondent on the basis of manslaughter by excessive self‑defence. That is the basis on which the Judge eventually did sentence the respondent. However, as can be seen from the foregoing extracts from the reasons, his Honour faced a very difficult task. Given the minimal findings of fact made by the Judge, and his inability to make important factual findings as to the precise circumstances in which the fatal shot was fired, there was not far the Judge could go in terms of assessing where the offending sat on the scale of seriousness for offences of this type.

For very similar reasons to those expressed by Kourakis CJ in R v Buttigieg,[4] the uncertainty of the factual circumstances here surrounding the actual commission of the crime is a factor which militates against permission being granted.
[4] [2020] SASCFC 38 at [1].
In these circumstances, although I regard a head sentence of nine years as low, I am unable to accept the prosecution submission that the sentence is so manifestly inadequate as to require this Court’s intervention.
As it was plainly open to the Judge to sentence on the basis of manslaughter by excessive self‑defence, I do not consider the prosecution have passed the high hurdle required for a grant of permission. Accordingly, I would refuse permission on ground 1.
That is not the end of the matter, however, as when it comes to the second ground of appeal, the uncertainty in relation to the factual findings assumes a different significance.
Ground 2 – Did the Judge err in finding that special reasons existed to justify a non‑parole period of four-fifths of the head sentence
The starting point for consideration of the second ground of appeal is s 48 of the Sentencing Act which reads as follows:
48—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 cooperation.
(4)This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.
I acknowledge that the Judge was bound by the decisions in R v Narayan[5] and R v Li,[6] which establish that a court is entitled to take into account whether a victim’s conduct substantially mitigated the offender’s conduct in cases of manslaughter by excessive self-defence. Nevertheless, it does not follow that in all cases of manslaughter by excessive self-defence the victim’s conduct must necessarily have substantially mitigated the offender’s conduct.
[5] [2011] SASCFC 61.
[6] [2016] SASCFC 152.
For a judge to reach the state of satisfaction required under s 48(2)(b) of the Sentencing Act there must be some proper factual basis on which the conduct of both the victim and the offender can be evaluated.
Here, the Judge made no factual findings about the critical moments when the shots which killed the deceased were fired. Thus, there was no factual basis beyond the appearance of the crime scene on which the Judge could have evaluated either the deceased’s conduct, or, for that matter, the respondent’s conduct during the critical moments.
I make no criticism of the Judge for the failure to make any findings about those critical moments. Having properly left three bases to the jury for a verdict of manslaughter, then having rejected the respondent’s account in key important respects, the Judge was simply not in a position to make any finding about the circumstances in which the fatal shots were fired, even on the balance of probability.
Thus, there was nothing that the Judge could assess or evaluate in determining whether he was satisfied if special reasons existed.
In accordance with well-established principle that matters of mitigation are to be established on the balance of probability, it was incumbent on the respondent to establish on the balance of probabilities that special reasons existed.
Section 48 of the Sentencing Act makes it clear that it is only in exceptional circumstances that a court will be justified departing from the mandatory minimum non-parole period fixed by the Parliament.
The second reading speech when the predecessor of s 48 was introduced into the Parliament, as the then s 32A of the Criminal Law (Sentencing) Act 1988 (SA), reinforces that conclusion. In introducing the Bill, the Attorney-General said:[7]
The Rann Government will introduce minimum non-parole periods for major indictable offences resulting in death or total permanent incapacity of a victim. In these cases, the offender should be required by the court to serve four fifths of his or her head sentence, unless the defence can establish that there are truly exceptional circumstances that justify a lower non-parole period. In the case of mandatory life sentence for murder, the offender should be required to serve a minimum of 20 years, unless the defence can demonstrate truly exceptional circumstances that justify a lower non-parole period.
[Emphasis added]
[7] South Australia, Parliamentary Debates, House of Assembly, 8 February 2007, 1744 (The Honourable MJ Atkinson, Attorney-General).
Here, consequent on the Judge’s findings, including his inability to make findings, the known facts on which the Judge was required to sentence were that:
·the respondent took a sawn-off shotgun and approached the deceased who was sitting in his car in his underpants;
·he fired three shots from the firearm, two of which hit the deceased;
·the fatal shot in the crime scene examiner’s estimation was fired from a position one to two metres behind, and slightly to the left of, the deceased;
·the firearm was reloaded after the firing of the second shot;
·after the shooting, the deceased was left to die;
·the respondent fled the scene and later took steps to conceal his involvement in the deceased’s death; and
·the respondent fled to New Zealand.
Even in an offence involving a verdict of manslaughter by excessive self-defence, it is up to an offender to establish to the satisfaction of the judge that there is evidence to support a finding that the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the respondent’s conduct.
The fact that it was the respondent who took a sawn-off firearm, concealed in a bulky overcoat, and approached an unarmed man sitting in his underpants in a vehicle, was one aspect of the respondent’s conduct which most certainly did not militate towards a finding that the deceased’s conduct substantially mitigated the respondent’s conduct. The fact that it was necessary for the respondent to reload the gun after firing the first two projectiles, as well as the fact that the deceased was shot from behind as he was running away, also militated against a finding that the deceased’s conduct somehow substantially mitigated the respondent’s conduct.
As the Judge was unable to make any findings beyond the bare facts and the appearance of the crime scene as to what particular altercation occurred and why – which resulted in the deceased’s death – there was simply no basis on which the Judge could evaluate the conduct of the deceased for the purpose of s 48(3)(a) of the Sentencing Act; that is to say, to evaluate whether the conduct of the deceased was such as to enable a finding that his conduct did “substantially mitigate” the respondent’s conduct.
For these reasons the Judge erred in finding there were special reasons within the meaning of s 48(2)(b) of the Sentencing Act.
That is not the only error made by the Judge. I turn now to consider the Judge’s finding in relation to the respondent’s personal circumstances.
The Judge found that the respondent’s involvement in the death of the deceased did not come to the attention of the authorities until his arrest almost 20 years after the fact. His Honour said:
… While I understand your hesitation in coming forward and acknowledging your responsibility for Mr Sabecki[s]’ death, the fact remains that it was your decision to flee to New Zealand and to not face up to or accept responsibility for your conduct.
That said, the time that has passed is also relevant in the sense that it has enabled you to not simply assert, but rather demonstrate that you are a person who is capable of a generally [l]aw-abiding and worthwhile life. While you have a driving offence and two assault offences on your record, they are all relatively minor matters in the scheme of things. You have otherwise demonstrated a good character throughout the period since your offending.
In this respect, I have had regard to the references you have provided to this court. The authors of each of those letters has, in varying ways, spoken of your good character, describing you as an essentially kind, generous and indeed gentle person. In the circumstances, I share Mr Broomhall’s view that you have positive prospects of rehabilitation, particularly given your preparedness to be involved in whatever therapeutic programs might be available to assist you while in prison. Indeed, I consider that you have very good prospects of rehabilitation, and that your conduct since the offence supports a conclusion that it is very unlikely that you will engage in such serious offending again.
I accept that you have ultimately shown a level of remorse and contrition for your wrongdoing. As Mr Broomhall recounts, it seems to have taken you a long time to come to terms with and accept your responsibility for Mr Sabeckis’ death. You initially attempted to address your feelings of guilt and remorse by trying to find a way to help other people. While you accepted responsibility for killing Mr Sabeckis in your evidence, it was only at the point of sentencing submissions that you first apologised to Mr Sabeckis’ family, or otherwise expressed any contrition for what you did.
As I have said, I am prepared to sentence you on the basis that you have ultimately shown a level of remorse and contrition for your wrongdoing. However, in circumstances where I have found that aspects of your evidence as to what occurred were false, and indeed tailored in an attempt to minimise your culpability for Mr Sabeckis’ death, there is a limit to the credit I can give you for these matters.
The Judge ultimately concluded:
In determining whether special reasons exist, and if so, the appropriate non-parole period to fix, I must also have regard to the benchmark established by the mandatory minimum. Here, despite the objective seriousness of your offending sitting above the low end of the range, I consider that the mitigating effect of Mr Sabeckis’ conduct, in combination with your personal circumstances, point strongly towards a lower than usual non-parole period. Your proven ability to live an essentially law-abiding life, and indeed, demonstrated soundness of character more generally over the period of 20 years since your offending, and your consequential good prospects of rehabilitation, in my view make you a strong candidate for a relatively short non-parole period. I acknowledge that you have only had the opportunity to demonstrate this character because you did not face up to your conduct, and indeed, fled the country, but in my view it is nevertheless a significant matter.
In my view, when the mitigating conduct of Mr Sabeckis’ conduct is considered in combination with your personal circumstances, there are special reasons for fixing a non-parole period less than the statutory minimum.
It is evident from the Judge’s approach in those paragraphs that he regarded the respondent’s personal circumstances, and in particular his rehabilitation and remorse, as significant matters when determining whether to exercise the discretion pursuant to s 48(2)(b) of the Sentencing Act.
To my mind, it is only a matter of logic that where delay is attributable to an offender fleeing the jurisdiction, much less credit should be given.
As the Victorian Court of Appeal said in Tones v The Queen,[8] there are two aspects towards assessing an offender’s prospects of rehabilitation:
… The first is whether the offender has accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse. The second is whether the offender has taken steps to reform, including by seeking counselling or other appropriate professional assistance, refraining from committing any further offences and being a valuable member of the community. …
[Footnote omitted]
[8] [2017] VSCA 118 at [41].
The relevance of delay in this matter of approximately 20 years between the commission of the offence and the sentence, and the respondent’s conduct during that period, assumed less importance in the circumstances here than it otherwise would. In R v Whyte[9] the Court said:
… Delay will very frequently be a matter of mitigation, particularly where the accused has used the time involved to rehabilitate himself or herself. For the respondent, Mr Ross contended that the concept of delay as a mitigating factor cannot figure largely in the sentencing process where the delay is “self-inflicted”; rather it will become a major mitigating factor if the delay was not due to the fault of the accused but rather the fault of the prosecuting authority or the system of the administration of justice. Where, however, the delay cannot be sheeted home to the prosecution or the system, but can be fairly attributed to the accused, such as absconding from bail, fleeing the jurisdiction or otherwise avoiding being brought to justice, delay must necessarily become of less significance, even to the point of giving less credit for rehabilitation established during that period. As the New South Wales Court of Criminal Appeal said in R v Shore:
[T]here is a clear distinction on the one hand between cases such as Todd where delay occurs because of circumstances entirely outside the offender’s control … and, on the other hand, cases such as the present where the only cause of delay was the applicant’s flight to avoid the consequences of his … criminality. To allow leniency because of delay alone would be … to place a premium on absconding and would be entirely contrary to the public interest. The proper course is that adopted by the sentencing judge in Kukunoski and approved in this Court, which allows the sentencing judge to recognize the unhappy condition of an accused person living as a fugitive would always fear that his crime might be brought against him, but not to encourage absconding by affording any additional leniency in relation to it.
Likewise, as in this case, offenders should not be given credit for preventing justice from taking its course by concealing the truth from investigating authorities. Of course persons accused of crime are entitled to maintain their silence, but if they profit as a consequence, it is intolerable to think that the profit is to be compounded by a reduction in the ultimate sentence. Staleness and delay can be significant sentencing factors but, as Angel J has pointed out in R v Braham, that will not always be so. …
[Footnotes omitted]
[9] (2004) 7 VR 397 at [25]-[26].
Here, it was also a relevant matter that, despite the professed remorse in the form of the letter handed up to the Judge at sentencing, the respondent has continued to lie concerning the true circumstances in which the deceased died. The Judge had no hesitation in rejecting his explanation at trial. By necessary implication from that finding, the respondent has continued to lie about the true circumstances of the deceased’s death.
In addition, much of the report of Mr Broomhall relied on by the Judge was based on what the respondent told Mr Broomhall. It is plain from the psychologist’s report that what the respondent told the psychologist about the circumstances of the shooting was consistent with his evidence at trial in respect of which key aspects were rejected by the Judge.
Here, the respondent fled Australia and was not apprehended for a period of almost 20 years as a consequence of an arrest on an unrelated matter in New Zealand. After the commission of the crime, the respondent took active steps to avoid detection. To this day, he has still not admitted what really happened in the car park at Maslin Beach in the early hours of 13 January 2000.
In these circumstances, the Judge’s assessment of the weight to be afforded to the respondent’s rehabilitation, rather than being significant, was considerably diminished. There was simply no basis to conclude that the respondent’s expression of remorse and contrition was genuine, or that the delay in these circumstances should be treated as a significant factor.
I consider that the Judge also erred by concluding for this reason that the respondent’s personal circumstances, in combination with the deceased’s conduct, provided a proper basis to exercise the discretion in s 48(2)(b) of the Sentencing Act.
The respondent submitted that even in the event that this Court finds error in the approach of the Judge to the imposition of the sentence, consistent with the proper purpose of a Crown appeal against sentence, it is not necessary for this Court to grant permission
In this respect, the respondent placed some reliance on what fell from the High Court in Green v The Queen[10] and subsequent cases in intermediate appellate courts which have applied the principles enunciated in Green. Green was a case which dealt with the specific issue concerning the application of the principle of parity stated in Lowe v The Queen[11] to the sentencing of offenders for different offences arising out of the same joint criminal enterprise.
[10] (2011) 244 CLR 462.
[11] (1984) 154 CLR 606.
The Court held that in the exercise of the jurisdiction pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) the New South Wales Court of Criminal Appeal has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. In doing so, the Court applied well-established principles in cases such as Everett v The Queen[12] and Malvaso v The Queen.[13] In Green, the New South Wales Court of Criminal Appeal had entertained a Crown appeal against sentence in respect of some participants in a substantial cannabis cultivation enterprise. The sentence imposed by the Court of Appeal had the effect of disturbing the relativity between the sentences imposed on the respondents to that appeal and that of their co-offenders, whose sentences were not the subject of any appeal.
[12] (1994) 181 CLR 295.
[13] (1989) 168 CLR 227.
The Court held that the Court of Appeal erred in failing to give adequate weight to the purpose of Crown appeals in the specific context of the application of the parity principle. It also found that the Court of Appeal erred in allowing the appeal partly on a basis not contended for by either party during argument.
Having regard to the disparity consequential upon allowing the appeals, together with the significant delays which had occurred during the appellate process, the Court held that the Court of Appeal ought to have exercised its discretion to dismiss the appeals. In the course of its reasons, the High Court stated, in an often-quoted paragraph:[14]
Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.
[14] Green v The Queen (2011) 244 CLR 462 at [43].

In CMB v Attorney-General (NSW)[15] the High Court restated the principle as follows:
The law reposes a wide discretion in the sentencing judge as to the determination of the appropriate sentence for the offender and the offence. Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King. Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh. Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as “the residual discretion”. As French CJ and Gageler J explain, the discretion is residual only in that its exercise does not fall to be considered unless House error is established.
[Footnotes omitted]
[15] (2015) 256 CLR 346 at [54].
In explaining the difference in appellate approach between offender and prosecution appeals by reference to the purpose that each serves, the Court quoted with approval from R v Hernando[16]:[17]
The joint reasons in Green v The Queen explain the difference in appellate approach to offender and prosecution appeals by reference to the purpose that each serves: offender appeals being concerned with the correction of error in the particular case and prosecution appeals being concerned with laying down principles for the guidance of sentencing courts. This is the “limiting purpose” which CMB invokes in his first ground.
In R v Hernando, Heydon JA summarised the Court of Criminal Appeal’s approach to the disposition of prosecution appeals against sentence:
[I]f this Court is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.
[Footnotes omitted]
[16] (2002) 136 A Crim R 451.
[17] CMB v Attorney-General (NSW) (2015) 256 CLR 346 at [55]-[56].
In CMB two considerations weighed heavily against interference with the sentence imposed by the Judge at first instance. They were the role the Director of Public Prosecutions had played in bringing about the sentences at first instances, and secondly, the publicly stated position of the Director of Public Prosecutions that in light of the peculiar circumstances of that case, the sentence at first instance and the decision of the Court of Appeal were of no precedential value.
Recently in this Court, two Commonwealth appeals against sentence were disposed of by reference to the principles approved in Green and discussed in later cases. In R v Buttigieg,[18] Lovell J (with whom Kourakis CJ and Nicholson J both agreed) dismissed a Crown appeal having regard to the particular circumstances of the respondent who had already been released on a recognisance and commenced taking significant steps towards rehabilitation.
[18] [2020] SASCFC 38.
The Court restated the principles to be applied as follows:[19]
A Crown appeal against the adequacy of a sentence should be approached with great care, and the ‘rare and exceptional’ test should be rigorously applied. However, the Crown will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’. Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.
As with any appeal against sentence, error must be identified before an appellate court may interfere. A specific error may be identified if a sentencing judge has acted upon a wrong principle, mistaken the facts, failed to take into account a material consideration, or allowed irrelevant matters to impact the decision. Alternatively, a specific error may not be identifiable yet the sentence imposed is so manifestly excessive or inadequate that the only inference to be drawn is that there was a failure to properly exercise the sentencing discretion.
[Footnotes omitted]
before concluding as follows:
Unsurprisingly in this case, the Sentencing Judge was impressed by how the respondent had turned his life around and, as he observed, was a ‘different person’ to the one who committed the offences. I have earlier set out the personal factors in favour of the respondent which demonstrate a determination to continue his rehabilitation. Indeed, it could be said that he has travelled a long way down the road of successful rehabilitation; it is nearly three years and eight months since his arrest. Whilst I accept that public policy reasons exist to allow permission to appeal, I do not consider that the gravity of the respondent’s offending overwhelms his personal circumstances. In my view, the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State leads to the conclusion that to allow the appeal would be at too high a cost, in terms of justice, to the respondent.
[19] R v Buttigieg [2020] SASCFC 38 at [39]-[40], [63].
In similar vein this Court in R v Faber,[20] after finding that the non-parole period imposed in that case was manifestly inadequate, nevertheless declined in the exercise of its residual discretion to grant permission to appeal on the basis of the principles set out and applied by various courts in Green v The Queen,[21] R v Kong,[22] and the Court’s earlier remarks in R v Buttigieg.[23] Ultimately, the Court in Faber expressed its conclusion on the facts:[24]
In determining whether to grant the Director permission to appeal, this Court must have regard to circumstances that will produce an injustice if the appeal is allowed. It is over three years since Mr Faber was arrested, he was employed up until he was taken into custody, he removed himself from drug use whilst on bail, and he has served five and a half months of his immediate custodial sentence expecting to be eligible for parole in about 10 months or to be considered for early release on home detention pursuant to s 37A of the Correctional Services Act. These matters must be considered by the Court in the exercise of its residual discretion.
[20] [2020] SASCFC 49.
[21] (2011) 244 CLR 462.
[22] (2013) 115 SASR 425 at [102]-[103].
[23] [2020] SASCFC 38.
[24] R v Faber [2020] SASCFC 49 at [77] (per Bampton J, with whom Parker and Livesey JJ agreed).
Significantly as well, the Court took into account that the sentencing Judge had expressed a strong view urging the Chief Executive Officer of the Department for Correctional Services to immediately release the respondent on home detention.
I do not apprehend that the decisions referred to above represent any departure by this Court from the application of well-established principles in the determination of Crown appeals against sentence.
They do illustrate, however, that it is necessary to exercise the discretion by reference to the peculiar facts and circumstances applicable to each case.
In this case, on any view, the respondent has a substantial period of imprisonment to serve.
I have concluded that the sentencing Judge made two important errors of principle in determining to depart from the mandatory minimum non-parole period fixed for the offence of manslaughter.
There was nothing in the proven circumstances surrounding the commission of this offence on which the Judge could have been satisfied in accordance with the requirements in ss 48(2)(b) and 48(3)(a) of the Sentencing Act that there were special reasons to depart from the minimum mandatory non-parole period. The proven facts pointed to a contrary conclusion. In light of the plain intent of the Parliament to limit the circumstances in which a court is permitted to fix a non-parole period lower than the minimum mandatory period prescribed in serious cases of homicide, I consider the Judge’s errors to be significant.
None of the circumstances referred to by the Judge warranted the exercise of the discretion in s 48(3) of the Sentencing Act. Even if there had been a proper basis to find special reasons, I consider that the combination of factors to which the Judge referred did not justify the exercise of the discretion in the respondent’s favour.
In these circumstances, I consider that this Court would not be fulfilling its duty upon a prosecution appeal to leave the non-parole period uncorrected.
Conclusion
For these reasons, I would refuse permission to appeal in respect of ground 1; however I would grant permission to appeal in respect of ground 2 and allow the appeal. I would impose a non-parole period of seven years, two months and 11 days, being four-fifths of the head sentence.
PEEK J: I have read the Judgments of Kelly J and Nicholson J.
I agree with the decision of Kelly J that permission to appeal should be refused on proposed ground 1 of appeal (asserting that the sentence was manifestly inadequate) and have nothing to add.
As to proposed ground 2 (concerning s 48 of the Sentencing Act 2017), I generally agree with the approach of Kelly J (except perhaps for some particular factual inferences that her Honour draws). In particular, I consider that there was an error by the trial Judge in that his Honour failed to give adequate consideration to the necessity for the defendant to prove what amounted to “matters of mitigation” within the meaning of such decisions of the High Court as R v Olbrich,[25] Weininger v The Queen[26] and Filippou v The Queen;[27] as well as various decisions of this Court.[28]
[25] (1999) 199 CLR 270.
[26] (2003) 212 CLR 629.
[27] (2015) 256 CLR 47.
[28] Such as MJDH v Director of Public Prosecutions(SA) (2013) 116 SASR 180 and R v Kreutzer (2013) 118 SASR 211.
The defendant gave evidence before the jury, but did not give additional evidence before the Judge on the sentencing hearing. His Honour rejected large parts of the defendant’s evidence before the jury and, in my view, the effect of such rejection was that the defendant did not discharge the onus upon him to satisfy the requirements of s 48(2)(b) and s 48(3)(a) of the Sentencing Act 2017. And that was the only way by which he could avoid the mandatory non-parole period of (at least) 80% of the head sentence.
However, a sentence of nine years imprisonment with a non-parole period of six years is a substantial sentence; and no member of the coram suggests that it is manifestly inadequate in all of the circumstances here.
Although I admit to some vacillation, I conclude that the error to which I have referred can be adequately addressed in the way suggested by Nicholson J. I agree with his Honour that it is not necessary in this case to allow a prosecution appeal to make that error plain.
I would therefore refuse permission on both of the proposed Grounds of Appeal.
NICHOLSON J: I agree with the analysis of principle provided by Kelly J and, but for her Honour’s final conclusion with respect to ground 2, her Honour’s application of principle to the facts of this matter.
I would refuse permission to appeal on ground 1 for the reasons Kelly J has given.
Ground 2 presents greater difficulty. On the assumption that the head sentence of nine years is to remain undisturbed, I am satisfied that the non-parole period of six years fixed by the Judge adequately addresses the various considerations that underlie the setting of a non-parole period, save for that which, ordinarily, is required by the terms of subsection 47(5)(d) and section 48 of the Sentencing Act 2017 (SA).[29]
[29] Section 48 is set out in Kelly J’s reasons; subsection 47(5)(d) is in these terms: (d) if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence.
However, Kelly J has carefully explained the errors by the sentencing Judge, the non-parole period that should have been imposed and why. As such I take the view, with respect, that the imposition on appeal of the correct non-parole period is not required, in order to give proper guidance to other courts or otherwise to satisfy the purposes of a successful prosecution appeal.
In R v Borkowski,[30] an important consideration when considering a prosecution appeal was explained in terms which have been generally accepted.[31]
[T]he purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong.
(Emphasis added)
In my view, that consideration applies here.
[30] [2009] NSWCCA 102; (2019) 195 A Crim R 1 at [70] (Howie J, McClellan CJ at CL and Simpson J agreeing).
[31] See for example, Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [37] (French CJ, Crennan and Kiefel JJ).
I am not satisfied that the prosecution has established sufficiently strong reasons of public policy in this case so as to require that permission to appeal be allowed in the face of the countervailing public interest in not twice vexing the respondent.[32] I would refuse permission to appeal.
[32] R v Buttigieg [2020] SASCFC 38 at [39].