R v McCarthy (No 2)

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCCARTHY (No 2)
[2017] SASCFC 132
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Bampton)
13 October 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Application for permission to appeal against sentence for manslaughter.
In the early hours of the morning of 8 June 2012, the applicant, after attending various licensed premises the previous afternoon and evening, went back to a house with his niece and another young woman. He fell asleep on a couch upstairs but awoke to a scream from the garage. He entered the garage and saw a man (the deceased) indecently assaulting one of the women. The two women fled and the applicant inflicted at least 15 separate blows to the head of the deceased, some with a baton, causing his death.
A conviction of murder at the first trial was set aside on appeal. At the re-trial, the applicant was convicted by a jury of manslaughter. The Judge found that the basis of this verdict was “excessive defence” pursuant to s 15(2) of the Criminal Law Consolidation Act 1935 (the Act) and sentenced the applicant to 12 years imprisonment with a non-parole period of nine years, seven months and five days.
The applicant sought permission to appeal on the grounds that the Judge sentenced on the basis of a murder conviction and thereby infringed the De Simoni principle; and that the Judge failed adequately to take into account that the applicant's actions in self-defence were in response to a home invasion. The applicant also complains that the sentence was manifestly excessive and that the Judge erred in not finding that special reasons existed to lower the mandatory non-parole period.
Held per Peek J, Kourakis CJ and Bampton J agreeing (granting permission to appeal on certain grounds and dismissing the appeal)
(1)     The Judge did not sentence inconsistently with a verdict of manslaughter based on “excessive defence” or infringe the De Simoni principle.
(2)     Although the Judge did not use the words “home invasion”, his Honour had appropriate regard to the underlying circumstances favourable to the applicant, and no error is demonstrated.
(3)     The sentence is not manifestly excessive. The Judge had appropriate regard to inter alia: the high degree of disproportionality of the extended beating; the applicant’s proven intent to inflict grievous bodily harm; his lack of contrition or remorse; and the fact that the applicant’s previous convictions indicated that little leniency could be extended to him.
(4) The Judge correctly directed himself as to the operation of s 32A(3) of the Act. It was open to find that special reasons to lower the mandatory non-parole period did not exist.
Criminal Law Consolidation Act 1935 ss 15, 15C; Criminal Law (Sentencing) Act 1988 s 32A, referred to.
De Simoni v The Queen [1981] 147 CLR 383; R v Bennett (2004) 88 SASR 6, discussed.
Nguyen v The Queen [2016] HCA 17, considered.

R v MCCARTHY (No 2)
[2017] SASCFC 132
Full Court: Kourakis CJ, Peek and Bampton JJ

KOURAKIS CJ. I would dismiss the appeal for the reasons given by Peek J.
PEEK J.
Introduction
Mr Patrick McCarthy (the applicant), Ms McCarthy (the applicant’s niece) and Ms Summerill were originally jointly charged with the murder of Mr Michael Varehov (the deceased). Ms McCarthy and Ms Summerill were close friends; Ms Summerill’s family had lived next door to the applicant when she was a child and she referred to him as “Uncle Pat”.
The deceased died as a result of receiving a large number of blows administered by the applicant, some with a baton, over the course of what will be referred to as a confrontation between himself and the applicant.
Prior to trial, Ms McCarthy and Ms Summerill pleaded guilty to assisting an offender (the applicant) and both gave evidence for the prosecution at the first trial. At that trial, the applicant was convicted of murder by the jury. The applicant successfully appealed against that verdict and a re-trial was ordered by the Court of Criminal Appeal.
At the re-trial, the applicant was acquitted of murder but convicted of manslaughter. The Judge subsequently found that the basis of the jury verdict of manslaughter was “excessive defence” pursuant to s 15(2) Criminal Law Consolidation Act 1935 (the Act). The Judge sentenced the applicant to imprisonment for 12 years with a non-parole period of nine years, seven months and five days.
Proposed grounds of appeal
The applicant seeks permission to appeal against that sentence on the following proposed grounds (which will be considered in a different order):[1]
1.   The sentence is manifestly excessive.
2.   The Learned Sentencing Judge erred in failing to consider adequately or at all that the jury returned a verdict of not guilty to murder.
3.   The Learned Sentencing Judge failed to take into account adequately or at all that the Appellant acted in self-defence in response to a home invasion.
4.   The Learned Sentencing Judge erred in refusing to find that special reasons existed to lower the mandatory non-parole period.
[1]    A fifth proposed ground was abandoned.
A summary of the relevant facts
The Judge in his sentencing remarks accurately summarised relevant aspects of the evidence at the second trial concerning the events leading up to the confrontation between the applicant and the deceased thus:
[9] I turn to briefly summarise the circumstances of your offending. You had been out socialising with friends and family at three different licensed premises in Norwood and in the city for virtually all of the afternoon, evening and night of 7 June 2012. In the very early hours of the morning of 8 June, rather than returning home you went with two of your companions, two young women well known to you, to the house which one was renting. You fell asleep on the couch upstairs. As the result of a rather detailed series of events of which you were entirely unaware and which do not need to be described, the two women had arranged for Mr Varehov to come to the house after you had fallen asleep in order to sell them methylamphetamine.
[10] Soon after having fallen asleep you were awoken by a scream or screams coming from the garage below. You ran down a set of internal stairs to the garage and upon entering the garage you observed a man in the process of indecently assaulting one of the women. The other woman had run past you and raced up the stairs as you were coming down the stairs. The nature of the indecent assault as would have been observed by you was the man grabbing the young woman on the breast and on the buttocks while she was still clothed. The man was Mr Varehov who according to the evidence conducted a drug dealing business, at least at street level.
His Honour went on to observe that, since the applicant elected not to give evidence and Mr Varehov was dead, there was no direct evidence of the subsequent course of the confrontation after the departure of the two women, but that much could be gleaned from the forensic evidence:
[13]   Nevertheless, the crime scene evidence, the forensic evidence, the expert medical evidence, the fact that a wooden baton was used by you to inflict many of the injuries, which baton was broken in two by the force of your efforts, the injuries suffered by Mr Varehov, including, in particular, to his head and the defensive wounds to his torso and the backs of his hands, including a broken knuckle, and the complete absence of any injuries or markings on yourself, not even a scratch to your hands, face or neck, which areas were not protected by your clothing, all in combination persuade me beyond reasonable doubt that you managed to subdue Mr Varehov very early in the altercation but that you continued with a protracted, cruel, brutal and vindictive beating of him, which persisted until he was unable to move.
[14]   The expert evidence was to the effect that you inflicted at least 15 separate blows just to the head of Mr Varehov and the circumstantial evidence as a whole demonstrates that the vast majority of these injuries would have been caused by you striking Mr Varehov’s head with the wooden baton. Mr Varehov suffered bleeding in the brain. The photographs of the multiple gashes and wounds on Mr Varehov’s head are shocking. One or more of the blows resulted in a patch of flesh, skin and hair being torn from the skull. Mr Varehov lost a substantial amount of blood.
[15]   The defensive injuries were such that Mr Varehov, to the extent he remained conscious, must have been solely intent on protecting himself, particularly his head and face, with his arms for a relatively extended period. The forensic evidence supports a finding that a number of the blows to the head would have occurred while Mr Varehov was on the ground. As I have said, the assault was protracted, vicious and brutal.
[16]   At or about the time you finished assaulting Mr Varehov you shouted for the two women to come back to the garage and they did so. Somehow Mr Varehov’s body was placed in the boot of a hatchback car that was in the garage and you ordered the two women to drive the car away. They were terrified and abandoned the car in a nearby street with Mr Varehov’s body still in it. They ran off on foot.
[17]   Later that same day you located the motor vehicle. It was driven to the Kuitpo Forest, where you, with the assistance of at least one other person, buried Mr Varehov’s body in a shallow grave. This was a serious aggravating feature of the crime of which you have been found guilty.
The basis of the jury verdict of manslaughter
The Judge correctly adjudicated upon the matter of the basis of the jury verdict of manslaughter in his sentencing remarks thus:
[5]     At the trial the jury were left with a number of defence submissions primarily directed at obtaining a complete acquittal of both murder and manslaughter. In essence, the nature and extent of the violent beating you gave Mr Varehov, about which the jury heard no direct evidence, the issue of whether or not you had the intention to kill or to cause grievous bodily harm and the issue of whether or not your actions were in fact a substantial cause of death were amongst the issues disputed before the jury.
[6]     In addition, a number of submissions and directions from the bench were put to the jury as to various legal bases, depending upon the jury’s assessment of the facts, which might have justified a verdict of manslaughter.
[7]     The verdict of the jury is inscrutable in the sense that there is no way of knowing the basis upon which it arrived at its verdict of manslaughter. As part of the sentencing process it is my obligation to determine the factual basis upon which the sentence for manslaughter is to be imposed. On my review of the evidence I am satisfied that in causing the death of Mr Varehov you were acting for a defensive purpose in the manner that I will explain.
[8]     However, the physical violence you inflicted on Mr Varehov was not in the circumstances as you genuinely believed them to be reasonably proportionate to the threat that you genuinely believed to exist. In other words, and to put it more bluntly, your assault of Mr Varehov was so brutal and excessive in the circumstances as to fall outside that which otherwise would have been permitted by the law to a person in your circumstances acting defensively. This has given rise to a partial defence in law which operated to reduce what otherwise would have been murder to manslaughter and which is colloquially referred to as excessive self-defence or defence of another.
This adjudication is not challenged in the proposed grounds of appeal.
It is at this point that regard must be had to the relevant statutory provisions.
Section 15 of the Criminal Law Consolidation Act 1935
The presently relevant provisions of s 15 of the Act are as follows:[2]
[2]    The defence in s 15A of the Act (defence of property) was also left to the jury but nothing turns on that defence for present purposes.
15—Self defence
(1)     It is a defence to a charge of an offence if –
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)     the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if –
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b)     the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts –
(a)     in self defence or in defence of another; or
(b)     to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)     However, if a person –
(a)     resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)     resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproved the defence beyond reasonable doubt.
…
15C—Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion
(1)     This section applies where –
(a)     a relevant defence would have been available to the defendant if the defendant’s conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the “perceived threat”); and
(b)     the victim was not a police officer acting in the course of his or her duties.
(2)In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant’s conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that –
(a)     the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and
(b)     the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and
(c)     the defendant’s mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non- therapeutic consumption of a drug.
At the outset of analysis, two matters may be emphasised. First, as the Judge specifically directed the jury, s 15(2) of the Act is “a partial defence to a charge of murder (reducing the offence to manslaughter)” which means that (like the partial defence of “provocation”), it will only arise for consideration if the elements of murder (including the required specific intent for murder) are otherwise established. I return to this matter in more detail below in the context of the complaint that the sentence is manifestly excessive.
The second matter relates to onus of proof. Although s 15 of the Act deals with “defences”, s 15(5) provides that “If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproved the defence beyond reasonable doubt”. Thus, provided such a defence is raised on the evidence, the onus is on the prosecution to disprove it.[3] For the sake of simplicity of analysis, some of the discussion that follows will be disengaged from the onus of proof and, for example, will refer to questions of whether s 15(1) (sometimes referred to as “the first limb”) is “established” or whether s 15(2) (sometimes referred to as “the second limb”) is “established”, and so on. Such discussion is always subject to the implied ultimate necessity to insert the required double negatives to accommodate the correct onus of proof.
[3] The position under s 15C is different in that there is an onus of proof (on the balance of probabilities) on the defendant.
Proposed ground 2 of appeal
The Learned Sentencing Judge erred in failing to consider adequately or at all that the jury returned a verdict of not guilty to murder.
As I understand it, the applicant’s argument under proposed ground 2 essentially consists of the following contentions.
The first contention
The first contention is that, having been convicted of manslaughter based on excessive defence, “the applicant was entitled to be sentenced on the basis that at all times he used only that much force that he believed was necessary for his own self defence or for the defence of one or other or both of the two young women in the house”.[4]
[4] The applicant’s outline of argument [1.2] purports to formulate “the elements of the crime of manslaughter by using excessive self-defence” and, having done so, then asserts the above contention. He cites as authority a passage in the judgment of Bell and Keane JJ in Nguyen v The Queen but this contention is not supported by that passage. Further, the legislation there under consideration, s 421 of the Crimes Act 1900 (NSW), was very different to the South Australian legislation and no assistance is to be gained by reference to it.
As expressed, this contention is puzzling. It specifically asserts that the precise amount of force actually used by the applicant (“he used only that much force”) should, for sentencing purposes, be calculated by reference to a belief held by him as to an appropriate amount of force to be used.
Such a contention is obviously untenable. The amount of force actually used on any occasion, including the subject occasion here, is an objective fact. Of course, such a fact may on occasions be unascertainable due to lack of objective evidence, but there is no such lack of evidence in the present case. As the Judge observed in the passage reproduced above, a conclusion that a high degree of force was applied over a significant period of time is to be confidently derived from the forensic evidence of the damage inflicted to the deceased as well as by reference to the damage caused to the baton in the course of inflicting those injuries.
Presumably, the first contention of the applicant would be more accurately expressed thus: “the applicant was entitled to be sentenced on the basis that at all times he ~~used~~ intended to use only that much force that he believed was necessary for his own self defence or for the defence of one or other or both of the two young women in the house”. As so expressed, the contention is congruent with the wording of s 15(1)(a): “the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose”.
However, it is to be emphasised that the applicant was not completely acquitted, and it must therefore be taken that the jury did not consider it reasonably possible that, under s 15(1)(b): “the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist”.

Translated from the s 15(1) general defence applicable to all criminal charges to the specific s 15(2) partial defence to a charge of murder utilised by the jury here, the position may therefore be expressed thus. The jury could not exclude as a reasonable possibility that “the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose” (s 15(2)(a)); but further, the jury did find beyond reasonable doubt that “the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist” (s 15(2)(b)).
As so amended, the first contention may be accepted.
The second contention
The second contention is that, if the Judge proceeded on the basis that the applicant had continued to batter the deceased after he had ceased to believe that he was acting in self-defence, his Honour thereby deprived the applicant of the favourable s 15(1)(a) jury finding; and thus he will have been sentenced on a basis equivalent to a conviction of murder rather than of manslaughter. Or, in other words, there will have been a failure to apply the De Simoni principle, that:[5]
[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.
[5] De Simoni v The Queen [1981] 147 CLR 383, 389 (Gibbs CJ).
This second contention may be accepted to the extent that if a Judge were to sentence on a verdict of excessive defence manslaughter on a basis that the accused was not to be given the benefit of a favourable s 15(2)(a) jury finding, then the sentencing process would miscarry.
However, in the present case, reference to the extensive oral and written directions to the jury confirms that the Judge was well aware of the relevant provisions of s 15. It is inherently unlikely that the Judge did commit the error referred to in this second contention. Whether it is established that the Judge did fall into such error will depend on the cogency of the applicant’s further contentions directed to establishing that his Honour did so.
The third contention
The third contention is that, on several occasions, the Judge used words referring to time frames that indicated that his view was that the applicant was to be given the benefit of a favourable s 15(2)(a) jury finding only in relation to the beginning of the confrontation rather than the full duration of his beating of the deceased. Reliance was placed on several passages, the most pertinent of which appear to be the following (with emphasis added by counsel for the applicant):
[13] Nevertheless, the crime scene evidence, the forensic evidence, the expert medical evidence, the fact that a wooden baton was used by you to inflict many of the injuries, which baton was broken in two by the force of your efforts, the injuries suffered by Mr Varehov, including, in particular, to his head and the defensive wounds to his torso and the backs of his hands, including a broken knuckle, and the complete absence of any injuries or markings on yourself, not even a scratch to your hands, face or neck, which areas were not protected by your clothing, all in combination persuade me beyond reasonable doubt that you managed to subdue Mr Varehov very early in the altercation but that you continued with a protracted, cruel, brutal and vindictive beating of him, which persisted until he was unable to move.
…
[19] Your immediate reaction in separating Mr Varehov and the woman so that she could make her escape and in resisting Mr Varehov’s initial aggression was quite understandable. To this point your actions could not be criticised. There was no premeditation. However, you were significantly physically superior and with the assistance of the wooden baton, which was somehow readily available to you, you persisted with a controlled attack until your victim, a stranger with whom you had no history, was dead or close to death. I view your actions as constituting a very serious example of the crime of manslaughter arising by way of excessive self-defence.
Later, in the context of his Honour’s finding that the applicant’s prospects for rehabilitation are guarded, the Judge said:
[47] I do so primarily because of the unnecessarily brutal and protracted nature of the offending, your prior record and your lack of contrition. Some leniency is called for because of the circumstances you found yourself in through no fault of your own. This was most unfortunate and there is no doubt that you were entitled to act by way of defence of the woman then assaulted and initially in defence of yourself.
Still later, in the same context, his Honour at paragraph [49] referred to “… the difficult position you initially found yourself in”.
Consideration
I reject this third contention. The true meaning of the above passages from the sentencing remarks is clear, and especially so when they are considered in the context of the whole of the sentencing remarks. The Judge was in fact contrasting two sequential periods of the confrontation and emphasising that the applicant was to be sentenced on the favourable basis that, during the initial part of the confrontation, the applicant came within both limbs of the general defence provision, s 15(1)(a) and s 15(1)(b). Thus, the Judge stated:
[11] You immediately reacted to what you heard and saw by pulling or pushing Mr Varehov away from the woman such that she also was able to make an escape up the stairs to the main residence. As to what took place thereafter, there is no direct eyewitness evidence. You did not give evidence, Mr Varehov is of course deceased and the two women who returned to the garage at some stage towards or at the end of your assault of Mr Varehov were either incapable of recalling or unwilling to tell the court what they saw. Nevertheless, there was substantial circumstantial evidence from which conclusions can confidently be drawn as to the nature and circumstances of the assault.
[12] I accept that when you intervened Mr Varehov initially resisted your efforts to pull him away and that he turned his attention to you in a physically aggressive or threatening manner such that you were entitled to and did take defensive action. I draw these inferences in reliance on the evidence of the two women concerning Mr Varehov’s conduct whilst they were in his presence prior to him arriving at the garage and concerning his conduct when they and he entered the garage and in reliance on the expert medical evidence concerning the typical effects that methylamphetamine at the extremely high levels found in Mr Varehov’s blood would have had on Mr Varehov in terms of increased impulsivity, increased propensity for aggression and reduced concern for or capacity to properly contemplate the consequences of actions.
In a number of ways, this was a favourable approach for the applicant. The applicant had elected not to give evidence and there was little evidence that the deceased “turned his attention to [the applicant] in a physically aggressive or threatening manner such that [he was] entitled to and did take defensive action.”[6] Nevertheless, in the light of the jury verdict, it was appropriate for the Judge to draw this favourable inference as a possibility reasonably open on the evidence.
[6] The evidence as to “typical effects that methylamphetamine at the extremely high levels found in Mr Varehov’s blood would have had on Mr Varehov in terms of increased impulsivity, increased propensity for aggression and reduced concern for or capacity to properly contemplate the consequences of actions” was evidence of what could have happened as distinct from what did happen.
Of course, if such had remained the position throughout the beating of the deceased, the applicant would have been entitled to a complete acquittal. However, as the Judge recognised, it did not remain the position; during the later period of the beating, the second (objective) limb could not be satisfied in that the infliction of violence by the applicant became disproportionate (although the first subjective limb continued to be satisfied throughout). Thus the Judge stated in amplification:
[18] The position in which you initially found yourself was a very difficult one. It was in the dark of night. You were woken from sleep in a quite unfamiliar place. You heard screaming and were confronted with one young woman close to you rushing up the stairs and another experiencing an ongoing indecent assault, all arising from circumstances of which you had no understanding. You must have been extremely shocked and concerned.
[19] Your immediate reaction in separating Mr Varehov and the woman so that she could make her escape and in resisting Mr Varehov’s initial aggression was quite understandable. To this point your actions could not be criticised. There was no premeditation. However, you were significantly physically superior and with the assistance of the wooden baton, which was somehow readily available to you, you persisted with a controlled attack until your victim, a stranger with whom you had no history, was dead or close to death. I view your actions as constituting a very serious example of the crime of manslaughter arising by way of excessive self-defence.
The Judge’s approach is entirely in line with the jury verdict of manslaughter which necessitates an acceptance that the jury found that, after a relatively short period of time, the extent of force being applied became objectively disproportionate under s 15(1)(b).
The fourth contention
The fourth contention is based upon the fact that the Judge used the word “vindictive” in the following passage (which is found in its more extended context in the longer passage of paragraphs [13] to [17] of the sentencing remarks reproduced above):
[Y]ou managed to subdue Mr Varehov very early in the altercation but that you continued with a protracted, cruel, brutal and vindictive beating of him, which persisted until he was unable to move. (Emphasis added)
The applicant submits in his outline of argument:
The use of the descriptor “vindictive” can only mean that the applicant was being sentenced on the basis that his motive (and therefore his belief) was revenge or punishment and not a belief that he was acting in self-defence or in defence of another.
Thus, the applicant submits that the word “vindictive” is redolent of a subjective intent of the applicant inconsistent with self-defence under the first “subjective” limb; and that he thereby makes good the second contention above that the applicant has not been given the benefit of the jury verdict which necessitated success before the jury on that first limb.
Consideration
The Judge only used the word “vindictive” once, and that occurred in circumstances of him also using a number of other descriptors including, in alphabetical order: “brutal”, “confronting”, “controlled”, “cruel”, “excessive”, “protracted”, “vicious”, and “violent”.
Although falling into a class referred to in another place as “vituperative epithets”, these other words are certainly not inappropriate in the present circumstances. In any case of a violent homicide, where feelings of family members and friends of the deceased may run high, denunciation of the crime in clear and pungent terms coupled with tangible retribution in the form of condign punishment have real parts to play in the sentencing process as the law’s antidote to the urge to take private revenge.
And, of present relevance, none of these other words are inconsistent with being directed only to the second objective limb, rather than to the first subjective limb. But, as the passage from the applicant’s outline above demonstrates, it is fair to say that the word “vindictive” is different in that it has an essentially subjective meaning of revengeful or retributive.
However, the pertinent question is not as to whether a particular word used in the course of oral sentencing remarks is inapt. Rather, the pertinent question is as to whether the applicant demonstrates that the use of a particular word(s), in all of the surrounding circumstances, properly founds an inference that the Judge erred in a matter of correct approach or sentencing principle. In considering that question, one must consider the whole of the sentencing remarks (and sometimes the wider trial process as well).
Having reviewed the transcript of the Judge’s summing up (232 pages), the plethora of written directions distributed to the jury (in total, 39 pages), the sentencing submissions (37 pages) and the sentencing remarks (11 pages), it is clear that the Judge was entirely aware of the intricacies of: the elements of murder and manslaughter; the various relevant defences and partial defences; and the appropriate approach to sentencing in the present circumstances.
It is also clear that the Judge endeavoured to sentence the applicant consistently with the jury’s verdict. His Honour properly recognised that the applicant was to have the benefit of the s 15(1)(a) jury finding in the sense that his subjective intent throughout the whole of the beating was to be taken as one of self-defence. Of course, his Honour also recognised that, after an initial period during which the applicant’s actions were not disproportionate, there came a time when he commenced, and continued, to act disproportionately (and hence the jury verdict of manslaughter rather than complete acquittal).
The Judge further considered that the extent of that disproportionality was great. Again, this approach was in no way inconsistent with the jury verdict; it was simply a view that his Honour took that was open to him and well supported by the evidence.
It was in all of these circumstances that the Judge added the word “vindictive” to the other words reproduced above. I have no doubt that if the difference in meaning had occurred to his Honour, he would have eschewed it as being inconsistent with the approach he sought to take to sentencing. To this extent, the use of the word was a “mistake”; but a mistake in the sense of a slip rather than a mistake which bespeaks an incorrect view or approach. As such, the mistake is of no present consequence.
I would grant permission to appeal on proposed ground 2 of appeal but reject that ground of appeal.
Proposed ground 3 of appeal
The Learned Sentencing Judge failed to take into account adequately or at all that the Appellant acted in self-defence in response to a home invasion.
The effect of the proposed ground (and the submissions in support) is to make a bright line complaint that: the deceased committed a “home invasion” (within the meaning of the term as used in the Act); and the applicant acted in self-defence in response to such home invasion; and the Judge failed to take the relevant matters into account adequately or at all.
I will first refer briefly to the relevant evidence and then approach those complaints in the above order.
A brief summary of the relevant evidence
A brief summary of the evidence relevant to a “home invasion” issue (within the meaning of that term used in the Act or in a more general sense) is as follows. Ms Summerill gave evidence that she and Ms McCarthy drove to meet the deceased to purchase methylamphetamine. It transpired that they had no or insufficient money and the deceased drove the girls in his car back to their home to get the money. He drove into the driveway, parking near the garage. The roller door on the left side was open. She stated that the following then occurred:
… I had walked into the garage and the – Michael had obviously gotten out of the car and still followed me in and there was no reason for that to happen at all, and he only I think – yeah, I only really realised I guess when he come up behind me in the garage and he had grabbed me from behind and, and I think I screamed or something, I can’t remember, but then he – I think I turned and he sort of maybe – it’s all really blurry, but he pinned me sort of against the car, I think, and maybe grabbed the front of me (INDICATES), and I was – there was a commotion at this point because I think Brooke was – Brooke had either come in or she – I think she had followed him behind because like I said, there was no reason for him to get out the car, and when I managed to get away, I just started running up the stairs and obviously Pat had woken up because of the screaming or he had obviously heard that something wasn’t right and heard us girls screaming and he – I ran up the stairs and at some point he had come down the stairs, or I think I passed him, I’m not sure, but he had woken up because it was, yeah, was, was pretty obvious that something wasn’t right, and I just ran up, up the stairs and ran straight into Bek’s room. …
During cross-examination, Ms Summerill said she did not invite the deceased in:
I don’t remember exactly what was said, but it was made clear that I would just run up and quietly, so that no-one woke up, or Pat didn’t wake up, and yeah, then we were just – I was just going to get the money and leave.
She further elaborated:
QDo you have a recollection now that he went to get out of the car and you said ‘No, I’ll go and get it’?
AI do remember there being – I can’t remember the exact wording, but something to those effect, to that effect, yes.
QAnd is it correct that in effect you didn’t, under any circumstances, invite Mr Varehov into your rental property?
A     No. He was – it was quite the opposite.
Q     Is it fair to say you didn’t want him anywhere near the house?
A     Yes.
Q     And is it the case that you made that clear to him before you left the car?
AYeah. It – yes, definitely. I’m not sure exactly how it was put, but it was definitely strongly put across, that I would go up on my own.
Ms McCarthy gave the following evidence:
We just pulled into the driveway and then Tash got out of the car to go inside and then I just sat in the car because she was just going to go in there. Then he got out of the car after her and like to the garage. He just got out like really fast out of the car and walked inside and just yeah. I jumped straight out after him wondering why he was getting out of the car. He grabbed her head or hair. I think he just threw her into the car or something. Then I think I grabbed him or pushed him or something and he pulled my hair and ripped my top and yeah, just like attacked us, I guess. … I remember Tash getting out and then I remember him just getting out really quite fast after her and following her and then I got out because there was no reason for him to go into the house.
She added that “by the time he got to the front of his car”, she had “jumped out of the car” to follow him “into the garage to see where she was going”.
A further relevant item of evidence is that the post-mortem examiner, Dr Charlwood gave evidence that peripheral blood and liver samples taken from the deceased showed the level of methylamphetamine in the deceased to be between 3 and 3.3mg per litre, which she said was “higher than most” she had identified previously, with the potential to be “toxic and fatal”.
Did the deceased actually commit a home invasion (within the meaning of the term as used in the Act)?
The term “home invasion” appears in s 15C(2) (see above), being there defined as meaning “a serious criminal trespass committed in a place of residence”. The offence of “serious criminal trespass” is in turn defined in s 168 thus:
For the purposes of this Act, a person commits a “serious criminal trespass” if the person enters or remains in a place (other than a place that is open to the public) as a trespasser with the intention of committing an offence to which this section applies.[7]
[7] Section 168 provides that the offence to which this section applies are: theft or an offence of which theft is an element; an offence against the person; or an offence involving interference with, damage to, or destruction of property punishable by imprisonment for three years or more.

The required mental intent for the commission of the offence of “serious criminal trespass” was considered in R v Bennett.[8] Doyle CJ (with whom Perry J concurred) there held that for a person to commit a “serious criminal trespass” it must be proven that he knew he was a trespasser and that he intended to enter the premises as a trespasser. His Honour stated:[9]
[27] I agree that the Judge should have told the jury that they could convict only if satisfied that the appellant in question knew he was a trespasser and intended to enter the premises as a trespasser. (I will come to the question of joint enterprise later).
[28] It is consistent with principle to treat s 170 (1) of the Criminal Law Consolidation Act 1935 (SA) as requiring proof that the person charged knew that he or she was a trespasser, or was recklessly indifferent as to whether he or she was a trespasser. The section creates a serious criminal offence. Parliament should not be taken to have intended to punish merely unknowing or careless conduct that amounts to a trespass at law. The law of trespass is complex in some respects. Requiring proof that the person charged knew that a trespass was occurring, or was reckless as to that, will help ensure that the application of the section is appropriate. As well, High Court authority dealing with a somewhat similar provision indicates that the state of mind of the accused should be treated as an element of the offence: Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 at 344, 348, 361, 365-6.
[8] (2004) 88 SASR 6.
[9] (2004) 88 SASR 6, 11-12.
It is to be remembered that, for the purpose of s 15C(2), the onus was on the applicant to prove (on the balance of probabilities) that the deceased was guilty of a “home invasion”. However, favouring the applicant, the Judge did not direct on certain possible difficulties of proving that the deceased was guilty of “home invasion”. These included questions concerning whether his entry through the open car-port door necessarily constituted a serious criminal trespass in circumstances where the deceased had been invited to enter the premises by parking on the driveway. A related difficulty, also not put to the jury, was that the deceased had an extremely high blood level of methylamphetamine such that he may not have known that he was a trespasser, or that may not have intended to enter the premises as a trespasser; however, such a mental state must be established if the commission of a “home invasion” is to be proven, as was held in R v Bennett, referred to above.
In the light of the above circumstances, it can be seen that it is at least debateable whether it was established that the deceased did actually commit a home invasion within the meaning of the Act.
Did the applicant “act in self-defence in response to a home invasion”?
The bald contention that the applicant acted in self-defence in response to a home invasion is not assisted by the fact that the Judge directed the jury concerning the s 15C defence (which, if established by the applicant led a complete acquittal), but the jury nevertheless convicted of manslaughter.
The significance of that rejection of the s 15C defence may be further accentuated by the fact that that defence only requires that the defendant “genuinely believed the victim to be committing, or to have just committed, home invasion” as distinct from establishing that there was in fact a home invasion (the latter being now asserted in this proposed ground of appeal).
The applicant submits that the likely explanation for the jury’s rejection of the s 15C defence is that s 15C(1)(c) requires it to be established that “the defendant’s mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug” and that the evidence of the applicant’s earlier drinking prevented the jury from being so satisfied. That may be so, but one notes that that outcome was very heavily contested by the applicant at trial with great weight being placed on the evidence of interviewing police officers who testified that the applicant appeared sober, with no signs of intoxication including no smell of alcohol and no slurring or stumbling.
Did the Judge fail to take relevant matters into account adequately or at all?
Counsel for the applicant strongly relies upon the fact that the Judge did not use the term “home invasion” when sentencing. It is correct that his Honour did not do so, but that may well be because his Honour perceived the difficulties discussed above (and perhaps others) in finding that a “home invasion”, within the meaning of the term as used in the Act, had in fact been committed.
However, much of this is by the by. When one comes to consider the proper sentencing of the applicant, the words “home invasion”, as distinct from the relevant underlying facts, had no particular significance. The real question in this area, not well articulated in the proposed ground of appeal, is whether the Judge had appropriate regard to the important underlying facts (which might loosely be referred to as a “home invasion” in the lay sense). As to this matter, the Judge stated:
[10]   Soon after having fallen asleep you were awoken by a scream or screams coming from the garage below. You ran down a set of internal stairs to the garage and upon entering the garage you observed a man in the process of indecently assaulting one of the women. The other woman had run past you and raced up the stairs as you were coming down the stairs. The nature of the indecent assault as would have been observed by you was the man grabbing the young woman on the breast and on the buttocks while she was still clothed. The man was Mr Varehov who according to the evidence conducted a drug dealing business, at least at street level.
[11]   You immediately reacted to what you heard and saw by pulling or pushing Mr Varehov away from the woman such that she also was able to make an escape up the stairs to the main residence. …
[12]   I accept that when you intervened Mr Varehov initially resisted your efforts to pull him away and that he turned his attention to you in a physically aggressive or threatening manner such that you were entitled to and did take defensive action. I draw these inferences in reliance on the evidence of the two women concerning Mr Varehov’s conduct whilst they were in his presence prior to him arriving at the garage and concerning his conduct when they and he entered the garage and in reliance on the expert medical evidence concerning the typical effects that methylamphetamine at the extremely high levels found in Mr Varehov’s blood would have had on Mr Varehov in terms of increased impulsivity, increased propensity for aggression and reduced concern for or capacity to properly contemplate the consequences of actions.
…
[16]   At or about the time you finished assaulting Mr Varehov you shouted for the two women to come back to the garage and they did so. Somehow Mr Varehov’s body was placed in the boot of a hatchback car that was in the garage and you ordered the two women to drive the car away. They were terrified and abandoned the car in a nearby street with Mr Varehov’s body still in it. They ran off on foot.
…
[18]   The position in which you initially found yourself was a very difficult one. It was in the dark of night. You were woken from sleep in a quite unfamiliar place. You heard screaming and were confronted with one young woman close to you rushing up the stairs and another experiencing an ongoing indecent assault, all arising from circumstances of which you had no understanding. You must have been extremely shocked and concerned.
[19]   Your immediate reaction in separating Mr Varehov and the woman so that she could make her escape and in resisting Mr Varehov’s initial aggression was quite understandable. To this point your actions could not be criticised. There was no premeditation. …
[20]   Mr Varehov was a drug dealer and he behaved towards the two young women in a criminal and frightening way. …
…
[47]   Some leniency is called for because of the circumstances you found yourself in through no fault of your own. This was most unfortunate and there is no doubt that you were entitled to act by way of defence of the woman being assaulted and initially in defence of yourself.
…
[49]   … However, in my view the conduct of Mr Varehov is to be characterised as substantially mitigating your conduct, at least to the extent that it justified some action on your part. I have reached this conclusion after giving consideration to both your and Mr Varehov’s conduct as I have identified it and acknowledging the difficult position you initially found yourself in.
I consider that it is clear that the Judge properly took into account in the applicant’s favour all of the circumstances that go to make the lay concept of “home invasion” so serious, irrespective of abstruse technical questions of whether the applicant could in fact establish that a “home invasion” (as peculiarly defined in the Act) had taken place.
I would refuse permission to appeal on proposed ground 3 of appeal.
Proposed ground 1 of appeal
The sentence is manifestly excessive.
There is, of course, no tariff for the offence of manslaughter; it is universally accepted that the sentencing range is wider than any other crime.
However, it is important to remember that, as noted above, the partial defence of “excessive defence” under s 15(2) of the Act is specifically stated to be “a partial defence to a charge of murder (reducing the offence to manslaughter)”. This plainly means that the defence is a specie of voluntary manslaughter. Like the partial defence of “provocation”, it will only arise for consideration if the elements of murder (including the required specific intent for murder) would otherwise be established.
The Judge directed the jury that this was so on a number of occasions. Thus in summing up his Honour directed:
Sometimes a so-called defence might operate as a complete defence to both murder and manslaughter so as to lead to a not guilty verdict of both offences. Self-defence, defence of another, defence of property, where they apply in full are examples of this because it means that the conduct causing the death was lawful. The fourth element which requires the prosecution to prove, beyond reasonable doubt, that the relevant conduct was unlawful and which is the same for both offences will not have been established in the case of any of those defences operating.
However, sometimes a so-called defence might operate as a partial defence so as to reduce what otherwise would be murder to manslaughter. I am going to speak to you about a concept loosely called, but you will understand why when I deal with it, ‘excessive self-defence’. That can operate to reduce what would otherwise be murder to manslaughter. The defence of provocation is another example of this, there are other examples.
Where these partial defences, in the way I will explain them apply and notwithstanding that all four elements of murder have been established, manslaughter, only, becomes the available verdict, what was otherwise murder will in the circumstances and by force of the statute that governs this area be reduced to manslaughter.
And later in the summing up his Honour directed:
To put it more simply: the law accepts the situation to be an occasion warranting conduct for a defensive purpose, although the actual response has not been objectively reasonably proportionate to the perceived threat; the actual response has gone too far. This is sometimes referred to in loose terms as ‘excessive’ self-defence or defence or another. As I have earlier said, a verdict of manslaughter will result, provided that and even though you are satisfied of the other three elements of murder.
And in the written directions his Honour directed:
NOTE: If the prosecution fails to exclude the first limb but excludes the second limb, self-defence will operate as a partial defence. The accused will be not guilty of murder but guilty of manslaughter provided that and even though the other three elements of murder are established.
As a matter of interest, it may be noted that in Nguyen v The Queen,[10] in the general context of questions of whether it is appropriate to assess the gravity of a particular instance of manslaughter by reference to “worst case hypotheses” or by reference to whether the case is one of voluntary or involuntary manslaughter, Bell and Keane JJ stated:
[34] In sentencing for any offence, it will seldom assist in determining whether a case is in the worst category to hypothesise some different case which is arguably more heinous.[11] That proposition has even more force in the case of sentencing for manslaughter, the most protean of all offences. Here, in dealing with the prosecutor’s “worst case” submission, the sentencing judge proposed that the involuntary manslaughter of the deceased (by unlawful and dangerous act) in circumstances in which it was known that the deceased was a police officer was a more objectively serious offence than the voluntary manslaughter (murder reduced to manslaughter by reason of excessive self-defence) with which she was dealing.[12] The determination of whether the appellant’s offence was in the category of “worst case”, and for that reason deserving of the maximum penalty, was hardly assisted by comparison with the improbable hypothesised offence. Nonetheless, it was not legal error for the sentencing judge to illustrate her rejection of the prosecutor’s submission in the way that she did. Nor was it error to consider that a case of involuntary manslaughter may be more objectively grave than a case of voluntary manslaughter.[13] (Emphasis added)
[10] [2016] HCA 17, [18].
[11] Veen v The Queen [No 2] (1988) 164 CLR 465, 478 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14.
[12] See Fisse, Howard’s Criminal Law, 5th ed (1990) 78.
[13] R v Isaacs (1997) 41 NSWLR 374, 381 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ).
Disengaged from the rather special facts in Nguyen, the italicised statement above plainly refers to the traditional voluntary/involuntary manslaughter dichotomy and appears to confirm two things. First, murder reduced to manslaughter by reason of excessive self-defence is a specie of voluntary manslaughter. Second, (by reference to the footnote referring to Fisse, Howard’s Criminal Law, 5th ed (1990) at 78), the classic distinction between voluntary and involuntary manslaughter is confirmed as being as stated in the following passage in Howard’s Criminal Law:[14]
D.    THE MENTAL ELEMENT IN MANSLAUGHTER
(i)    Introduction
A killing which is not murder may yet be unlawful because it amounts either to manslaughter or to some such lesser statutory offence as causing death by driving. Manslaughter is traditionally and usefully described as either voluntary or involuntary. Voluntary manslaughter is a killing which prima facie amounts to murder but is reduced to manslaughter by reason of some mitigating circumstance. The categories of voluntary manslaughter are killing upon provocation, diminished responsibility and infanticide. At common law it was also voluntary manslaughter to kill by the use of more force than the occasion warrants in the defence either of oneself or of another or in the exercise of a lawful power of arrest or the prevention of a felony. The High Court has since decided to abrogate the defence of excessive force, a turnabout of questionable merit and one that may not survive statutory scrutiny. The categories of involuntary manslaughter are killing by a blow not intended to cause grievous bodily harm or death, killing by criminal negligence and killing by means of certain other unlawfully dangerous acts. In Victoria and South Australia the survivor of a suicide pact, pursuant to which another has died, is guilty of manslaughter.  [Footnotes deleted]
[14] Fisse, Howard’s Criminal Law, 5th ed (1990), 78. (I might add that the relevant passage is practically indistinguishable from the corresponding passage at page 72 of Howard Criminal Law, 4th ed (1982), being the last edition written by Professor Colin Howard.)
The Judge correctly approached the task of sentencing
It necessarily follows from the above discussion that the consequence of the finding that the verdict of manslaughter was based on excessive defence is an acceptance that the jury found that the applicant had at least the intention to inflict grievous bodily harm upon the deceased. It may be assumed in favour of the applicant that his intention was found to be an intention to inflict grievous bodily harm rather than to kill.
In my view, the combination of first, the high level of intention to inflict grievous bodily harm and second, the high degree to which the extended beating exceeded the proportional limits of s 15(1)(b) (as found by the Judge), amply justify the Judge’s assessment that this was a very serious case of manslaughter.
Indeed, it was not suggested on the appeal that the present sentence imposed by the Judge is higher than encountered in comparable cases of manslaughter by reference to a schedule of comparable sentences. Indeed, there was no cohesive submission put as to why this sentence is “manifestly excessive”; rather, a number of disparate matters were referred to which might have been the subject of separate grounds of appeal, but presumably were said to come within the manifestly excessive umbrella. They are as follows.
Remorse, contrition and deterrence
The applicant submits that the Judge gave no allowance for remorse and contrition. To some extent, the Judge’s remarks concerning this topic overlap with the topic of the correct approach to s 32A(3) of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) concerning the non-parole period.[15] However, the following passage makes clear that the Judge had close regard to the topic of remorse and contrition generally:
[15] Referred to below under proposed ground 4 of appeal.
[36]   Some eight weeks or so before the trial[16] an informal offer to plead to manslaughter was made to the Director of Public Prosecutions. It is unclear from the terms of the offer whether it was conditional or not. The resolution proposed was that there would be a plea of manslaughter on the basis of excessive self-defence. The letter is ambiguous. On one reading, and that propounded by your counsel during submissions, it also suggested as a basis for such a plea manslaughter by unlawful and dangerous act. No factual admissions were indicated and no factual basis said to justify or support the plea was outlined.
[37]   The letter went on to seek an indication from the Director as to his attitude to a submission on penalty for manslaughter that the period already served, four years and two months as at the date of the letter, would approximate the appropriate non-parole period. As I say, it is unclear to me whether or not the offer was conditional on receiving a satisfactory response to that inquiry.
[38]   The offer to plead to manslaughter was rejected and your counsel has submitted that I should give weight to this offer to plead to an outcome which was not bettered by the prosecution following the trial when considering the extent to which I might exercise leniency in sentencing. In addition, the offer to plead is relied upon as a demonstration of your contrition and of your willingness to cooperate with the administration of justice.
[39]   I am not persuaded that the offer to plead was a genuine expression of contrition or a genuine acceptance of wrongdoing. In my view the offer was tactical. It came about some four years after the event and, pertinently, after you had been convicted by a jury of murder. The primary reason why the matter was returned for a retrial following your successful appeal was that the partial defence of provocation, which if accepted by a jury would operate to reduce murder to manslaughter, had not been left to the jury. Nevertheless, given the nature of the evidence apparently available to the prosecution, the prospects for the provocation defence succeeding on the facts would have to have been seen as guarded.
[40]   Further, there was a factual allegation in the first trial which was accepted by the judge in his sentencing remarks and which if accepted by the jury would have added significant strength to the prosecution’s case for murder. As the retrial unfolded before me that factual allegation was not adduced in evidence, although you were not to know that that would happen. In my view you must have realised you were at substantial risk of a murder conviction at the second trial.
[41]   Further, having spent more than four years in custody, an argument could have been pressed that you should only have to spend a relatively short further period in custody in the event of a manslaughter conviction.
[42]   I agree with the prosecution’s submission that at all times the case for manslaughter was extremely strong in any event. You could have entered a plea prior to the trial or even on the day of trial and that may have been seen as evidencing at least some genuine contrition. However, you chose not to do so but to maintain your complete innocence before the jury.
[43]   In addition to the offer to plead it is the case that there were a number of factual matters either agreed or at least not disputed at the trial, such that there was some assistance given to the administration of justice in shortening the trial. To the extent that matters were agreed or at least the prosecution’s detailed chain of evidence not challenged, these were with respect to matters about which the Crown proofs were extremely strong. Again, I do not regard this as indicative of real contrition. Nevertheless, both this cooperation at trial and the offer to plead which if accepted would have saved a trial, are to be accorded some utilitarian value and I will give some weight to these matters when fixing sentence.
[44]   When considering contrition your conduct as a whole is relevant. I was troubled that at the conclusion of the lengthy and extensive submissions from your counsel, to be considered in conjunction with the large bundle of testimonials from your family and friends, I still had heard nothing other than what a good person you are and how much hardship and distress these events have caused you and your family. I had heard nothing about what you thought about or felt towards the deceased, Mr Varehov, and his family, or about how you felt about yourself after having committed such a brutal manslaughter. Upon being prompted in this respect counsel assured me that you were contrite.
[45]   After some toing-and-froing, a very short handwritten note, which in fairness you had earlier written and which had been overlooked, was provided. You wrote this: ‘I feel very sorry for Mrs Varehov and her children about the loss to them of Mr Varehov.’ The larger part of the note contains an apology for burying Mr Varehov and an attempted justification. You describe this as a terrible thing to have done and that you did it out of panic and fear. I read the note and I read the note, as too little too late. I am not persuaded that you have any genuine remorse or contrition or that you have concern for what you have done other than insofar as it has had an impact on you and your family.
[16] The Judge here refers to the second trial. The letter was dated 5 August 2016, being some four years and two months after his arrest and some eight months after the Court of Criminal Appeal had set aside the conviction of murder following the first trial.

The applicant gave no evidence at trial or on sentencing. Although counsel for the applicant intimated at the permission to appeal stage[17] that affidavit material concerning the offer to plead to manslaughter and other matters might be tendered on the substantive hearing, in fact no such material was sought to be tendered. No plausible submission has been put as to why the approach and findings of the Judge immediately above were not open to him.
[17] The issue of permission to appeal was referred to the Full Court.
It was also faintly submitted that the Judge’s findings of lack of remorse and contrition rolled on so as to have an effect of incorrectly influencing the Judge’s approach to deterrence. However, I consider that his Honour’s approach to personal and general deterrence was unexceptionable. Thus his Honour stated:
[46] As I have said, the offending was very serious. I take the view that notwithstanding the difficult position in which you initially found yourself, general deterrence remains of real significance when sentencing in this matter. I recognise that the offence committed is far more serious than anything in your recorded history and that it arose out of quite peculiar circumstances unlikely to be repeated. As a consequence personal deterrence may have less of a role than otherwise to play. However, given the nature and persistent extent of your prior criminal record, your lack of contrition and your apparent lack of concern for the fact that you have taken another man’s life in such brutal circumstances, I take the view that personal deterrence does still have a role to play.
Again, no plausible submission has been put as to why this aspect of the Judge’s approach and findings were not open to him.
Hardship to the applicant and his family
The applicant submits that the Judge gave no allowance for hardship to the applicant and his family. However, two matters should be initially noted.
First, the Judge specifically recognised hardship arising from the long remand period. His Honour stated:
[3] One of the reasons you have spent such a lengthy period in custody on remand is that initially you were convicted of the offence of murder. However, following a successful appeal a retrial on that charge was ordered. As I have indicated, at the retrial you were found guilty of manslaughter after having been acquitted of murder. It is generally accepted that significant periods of time spent in custody on remand, particularly in the Adelaide Remand Centre rather than as part of the general sentenced prison population, is a matter of some hardship.
[4] There has been hardship as a result of the quite unusually long period you have been on remand with the stress and anxiety of waiting to learn whether or not you would be convicted. Furthermore, the living conditions imposed at the Adelaide Remand Centre and the opportunities available to remand prisoners to obtain assistance with respect to rehabilitation are appreciably inferior and more limited, respectively, than those experienced by the general prison population. I have taken these matters into account, together with other factors later mentioned, when considering the extent to which there is scope for leniency in the sentence I am to impose.
Second, the Judge also specifically recognised a wider form of hardship to members of the applicant’s family. His Honour stated:
[30] I accept that the consequences of 8 June 2012 and the inevitable and somewhat relentless aftermath have caused hardship to you and many members of your family, not just your wife and your children. Some of this hardship will continue for as long as you remain in custody. I also accept that it has been particularly difficult and damaging emotionally and potentially psychologically for your five young children, given their ages and limited opportunities to see you.
[31] This issue of hardship to you and your family is part of your personal circumstances and has a bearing on the question of leniency. However, it can be given only limited weight. I am not satisfied that the hardship you have suffered and will suffer while in custody and the hardship your family has suffered and will continue to suffer is appreciably out of the ordinary. It may be regarded as severe but hardship in the ways I have described is a common and expected outcome for persons who are convicted and sentenced to imprisonment for such a very serious offence and for their families.
It cannot be demonstrated that the Judge did not adequately address the topic of hardship to the applicant and his family. And nor can it be demonstrated that his Honour did not appropriately take these matters into account when determining the details of the sentence to be imposed.
Previous convictions
The applicant asserts that the Judge unduly emphasised and relied on the applicant’s numerous previous convictions when imposing sentence. However, I find no error in the Judge’s approach. His Honour did not increase the sentence because of the convictions; if he refrained from granting the leniency he might have given to a first offender, that was an approach open to him.
Conclusion concerning proposed ground 1 of appeal
I conclude as to all of the matters put by counsel (including these matters of remorse and contrition; deterrence; hardship to the applicant and his family; and previous convictions) that, taken singly or cumulatively, they do not advance, let alone establish, the contention that the sentence is manifestly excessive.
I would refuse permission to appeal on proposed ground 1 of appeal.
Proposed ground 4 of appeal
The Learned Sentencing Judge erred in refusing to find that special reasons existed to lower the mandatory non-parole period.
The Judge correctly directed himself that he was required by the Sentencing Act to fix a non-parole period that is not less than four-fifths of the head sentence unless special reasons exist for fixing a shorter period. Section 32A(3) provides:
(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.
Section 32A(3)(b) was clearly inapplicable.
Section 32A(3)(c): Co-operation
As to s 32A(3)(c), the Judge’s earlier discussion of asserted “co-operation” in connexion with the matter of contrition is reproduced above at paragraph [74]. His Honour had there rejected the main submissions concerning “co-operation”, although he did make some limited allowance for some utilitarian value.
Later, in the context of fixation of the non-parole period, the Judge stated as to both s 32A(3)(c) and s 32A(3)(a):
Given the type of offence committed and the fact that a life has been taken, the legislation ordinarily would require that I impose a non-parole period of at least 80% of that sentence. A non-parole period greater than 80% remains available but I am not persuaded that a greater period would be warranted in this case. However, there is a discretion to order a non-parole period less than 80% in limited circumstances. In order for that discretion to be enlivened I must be satisfied that at least one of the qualifying matters as prescribed in the legislation exists and if so, that any such matter or matters are such as to amount to special reasons sufficient to fix a non-parole period less than the statutory minimum. For reasons already given, I do not consider your cooperation during the trial process as sufficient to enliven the discretion. However, in my view the conduct of Mr Varehov is to be characterised as substantially mitigating your conduct, at least to the extent that it justified some action on your part. I have reached this conclusion after giving consideration to both your and Mr Varehov’s conduct as I have identified it and acknowledging the difficult position you initially found yourself in.
I note the submission of the applicant that the matters in placitum (a) and (c) should not have been treated in isolation but rather dealt with cumulatively. He submits that: “This is a question of law. The matters should have been aggregated (sic) and then considered. This failure constitutes error on the part of the LSJ”.
That submission might well have some significance in a case where it is recognised that each of more than one of the categories of special reasons has a significant degree of weight; in that situation, it could be important to deal with them together and cumulatively. However, in a situation where a Judge considers that little weight is to be afforded to a particular matter urged by the defendant, no practical harm will be done if that matter is rejected at the outset. I consider that that is what occurred here. The Judge was clearly of the view that little weight was to be accorded to the alleged co-operation, and I do not disagree with that assessment. Accordingly, even if the preferable cumulative approach had been specifically taken, the result would have been that this matter would have contributed little weight to the total and would not have affected the Judge’s conclusion.
Section 32A(3)(a): The victim’s conduct
As to s 32A(3)(a), the Judge carefully directed himself concerning the conduct of the deceased thus:
[50]   I must now consider whether this qualifying matter gives rise to special reasons sufficient to allow for a non-parole period less than the otherwise mandatory minimum of 80% of the head sentence.
[51]   I start with a notional non-parole period of nine years, seven months and five days, being 80% of the head sentence I have set. I must review this notional non-parole period but bearing in mind the impact of the special reasons I have found which enliven the discretion to go below it, together with the legislative admonition that the mandatory minimum is the appropriate non-parole period for the offence of manslaughter which is at the lower end of the range of objective seriousness. A relevant consideration is whether the imposition of the mandatory minimum in all of the circumstances of this case would be disproportionate and oppressive. I must also have regard to all of the circumstances ordinarily relevant to fixing the non-parole period.
[52]   As I have said, the offence you committed is a very serious example of the offence of manslaughter arising by way of excessive self-defence. In my view it is not at the lower end of the range of objective seriousness for the offence of manslaughter but well above that. This is not conclusive. However, it is of importance to this issue.
[53]   Furthermore, and bearing in mind all the circumstances as outlined in these remarks, even if I were free of any legislative restraint I would set a very high proportion of the head sentence as the non-parole period in any event.
[54]   I am not satisfied that there are special reasons in this case sufficient to justify a reduction in the statutory mandatory minimum. In my view to fix the mandatory minimum in this case would not be disproportionate or oppressive. I decline to reduce it.
This approach and result was clearly open to the Judge. No appellable error is demonstrated.
I would grant permission to appeal on proposed ground 4 of appeal but reject the ground of appeal.
Conclusion and disposition
I would dismiss the appeal.
BAMPTON J. I would dismiss the appeal. I agree with the reasons of Peek J.

[2017] SASCFC 132

13 October 2017

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