R v Narayan

[2011] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v NARAYAN

[2011] SASCFC 61

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice David)

1 July 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

Mrs Narayan was charged with murder and found guilty by jury of the manslaughter of Mr Narayan on the basis of provocation – the Trial Judge sentenced the respondent on the basis she had killed Mr Narayan acting under ‘extreme provocation’ – the Trial Judge sentenced the respondent to six years’ imprisonment, fixed a non-parole period of three years and suspended the sentence upon the respondent entering into a bond – the Director of Public Prosecutions (DPP) appealed against sentence – whether the sentence imposed by the Trial Judge was manifestly inadequate – whether the trial Judge erred in the application of s 32(5)(ba) and s 32A of the Criminal Law (Sentencing) Act 1988 (SA) in fixing the non-parole period – whether the Trial Judge erred in suspending the sentence.

Held (Doyle CJ, Nyland J and David J concurring): the DPP’s characterisation of the offending conduct was not accurate – the head sentence and the non-parole period were within an appropriate range – the Trial Judge’s decision to suspend the sentence reflected an assessment of the circumstances, which it was open to the Trial Judge to make – no error of principle was identified.

Permission to appeal refused.

Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ba), s 32A, s 32A(1), s 32A(2)(b), s 32A(3), s 32A(3)(c) and s 38(1), referred to.
R v A, AD [2011] SASCFC 5, discussed.
R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Barnett (2009) 198 A Crim R 25, considered.

R v NARAYAN
[2011] SASCFC 61

Court of Criminal Appeal:  Doyle CJ, Nyland and David JJ

1. DOYLE CJ:          The Director of Public Prosecutions (DPP) has applied for permission to appeal against a sentence imposed on Mrs Narayan by a Judge of this Court.

2. Mrs Narayan was charged with the murder of her husband.  After a trial, a jury found her not guilty of murder but guilty of manslaughter.  The Judge sentenced Mrs Narayan on the basis that she had killed her husband acting under “extreme provocation”.  The Judge sentenced her to imprisonment for six years; fixed a non-parole period of three years, and suspended the sentence upon Mrs Narayan entering into a bond.  Conditions of the bond were that she be of good behaviour for three years; be under the supervision of a Community Corrections Officer for a period of two years, and undergo treatment if directed to do so by the Community Corrections Officer.

3. Mr Kimber SC, counsel for the DPP, submits that the sentence is manifestly inadequate. He submits also that the Judge erred in the application of s 32(5)(ba) and s 32A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) to the circumstances of the case. These provisions provide for a mandatory minimum non-parole period (the mandatory period).

   Facts

4. Mrs Narayan married Mr Narayan in Fiji in 1986.  It was an arranged marriage.  I assume it was arranged between the respective families.  Mrs Narayan was then 22 years of age.  Mr and Mrs Narayan migrated to Australia in August 1986.  Mrs Narayan’s parents were practising Hindus, and were strict in their beliefs.  The Hindu faith, and cultural traditions associated with it, are an important part of the background to this case.

5. What follows is an abbreviated summary of the circumstances.  It suffices for the purposes of the appeal.  As best I can tell, none of the following matters are disputed.

6. About three months after the marriage Mr Narayan began to inflict physical violence on Mrs Narayan.  He also subjected her to frequent criticism.  Mrs Narayan believed that a wife should submit to her husband, and should devote herself to him, to the marriage and to the family.  Accordingly, Mrs Narayan accepted Mr Narayan’s behaviour.  Indeed, she thought that she deserved mistreatment, because in some way she had failed to behave as she should have.  By and large she suffered in silence.  It was thought demeaning of a husband or of the family for a wife, with her cultural background, to raise disagreements or tensions in the broader family.  However, over time Mrs Narayan did confide to some degree in some friends that she made.

7. This pattern of behaviour continued over many years.  The physical mistreatment diminished over time.  In the last few years before his death, Mr Narayan behaved violently less often.

8. The result of this was that Mrs Narayan suffered a severe loss of self esteem and of self confidence.  She was deeply unhappy.  Some support for her evidence came from two of her children who gave evidence, and from a family friend who gave evidence.

9. About 5 December 2008, Mrs Narayan came to suspect Mr Narayan of having had an affair with Ms K, and to suspect that Mr Narayan was continuing to support Ms K financially.  She made enquiries at a bank about his Visa card.  She consulted a psychic.  She confronted Mr Narayan.  Mr Narayan denied the affair, but in a manner that was dismissive of Mrs Narayan’s concerns.  She became increasingly anxious.

10. On 6 December she made some further enquiries.  Mr Narayan admitted having had an affair with Ms K before he married Mrs Narayan.  This shocked Mrs Narayan.

11. Mrs Narayan was deeply distressed by all this.  She believed she should keep the family unit together, and be obedient to her husband.  But her belief in him was shaken by his admission of an earlier affair, and by her suspicion that the affair was continuing.  She was pre-occupied with her situation during that day.

12. About 4.00 am on 7 December, she awoke and spoke to Mr Narayan about Ms K.  He did not admit having an affair with her, but gave Mrs Narayan the password to his email account.  Mrs Narayan then read emails that confirmed to her that Mr Narayan was having an affair with Ms K and that he intended to leave Mrs Narayan.

13. The off‑hand manner in which Mr Narayan allowed Mrs Narayan to see these emails, and to learn of the relationship with Ms K, added to her distress. 

14. Mrs Narayan was distressed and confused.  She spent an hour or so in the early hours of the morning pondering her situation, and her marriage.

15. It is convenient here to set out the Judge’s findings:

    You became very distressed and confused.  You thought about how you could save your marriage.  To you it was unthinkable that he should leave you after you had endured so much.  There is no doubt that at that point your thinking became totally unrealistic and muddled.  When you gave evidence at the trial you described your thoughts.  You said that you believed it was up to you to save your marriage and nobody could help you.  You thought you should burn the tip of your husband’s penis with a candle that was given to you by the psychic because it seemed that it was fate that had taken you to the psychic.

    You described how fire was a significant symbol to Hinduism and you decided, you said, to burn the tip of his penis like a circumcision, like the red spot on your forehead. There would then be a red spot on his penis which would bind him to you.

    You went to the garage and took some petrol and put it in a beaker. You believed, in your illogical way, that you could save your marriage. You went to the bedroom with the beaker of petrol and the candle. Your husband was awake and for the first time in your life you say you had the strength to confront him. You said to him ‘I’ve seen your email and I’m going to burn your penis, I’m going to tell the family about it’. You said your husband responded by turning his back on you and saying ‘No you won’t, you bitch’.

    It was that act which caused you to snap. For the first time in your life you had confronted your husband. For the first time you had the courage to take the initiative and to be assertive to this person who had mistreated you for over 20 years. His response was to treat you with absolute disdain and to dismiss you. You described his words as being an extremely abusive remark. It was worse than the blows you had received and worse than the beatings you had received. You said you would rather have him hit you than to turn his back on you when you were begging for his love.

    In that moment when he turned his back on you, you snapped, and you threw the petrol on him and set him alight. Immediately thereafter, when you realised he was on fire, you assisted him to the shower and put him under the shower. You assisted him downstairs and you were with him downstairs as the house burned and as the police and ambulance arrived. Your conduct in throwing the candle and petrol was momentary. The moment you realised what you had done you attempted to help your husband. The last words you said to him prior to him being taken away in the ambulance were that you loved him. I accept that you were genuine.

16. Mr Narayan died some weeks later from the injuries that he received.

17. Dr Raeside, a forensic psychiatrist, gave evidence which the Judge accepted.  He said that the history of physical and emotional abuse resulted in depressive episodes.  Mrs Narayan had developed a “learned helplessness” from her cultural and personal beliefs.  She became subservient to Mr Narayan.  He expressed the opinion that an abused wife in a situation like that of Mrs Narayan could well feel betrayed and very angry.  This would be mixed with shame felt on her part, and fear that her husband had shamed himself. 

18. Victim impact statements from members of Mr Narayan’s family were put before the Judge.  The Judge accepted that his family were greatly distressed by his death.  They regarded him as a talented and good man.  The Judge accepted that that was how Mr Narayan appeared to his family, and to the community. 

    The sentence

19. The maximum punishment for the offence of manslaughter is life imprisonment.  The Judge imposed a head sentence of six years’ imprisonment.  The head sentence would have been seven years’ imprisonment but for about two months spent in custody, a lengthy period of time on home detention bail, and offers made by Mrs Narayan to plead guilty to manslaughter on the basis of provocation.  Those offers were not accepted by the DPP.  On the hearing of the appeal, Mr Kimber pointed out that the time spent in custody was in fact 33 days, somewhat less than two months.

20. When the Judge came to fix a non-parole period, the Judge had to bear in mind that the offence attracted a mandatory period of four-fifths of the length of the head sentence: s 32(5)(ba) of the Act. The Judge had power to fix a non‑parole period shorter than the mandatory period only if satisfied that “… special reasons exist for fixing a non-parole period that is shorter than the prescribed period …”: s 32A(2)(b) of the Act. Section 32A(3) of the Act provides:

    32A(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 co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.

21. The Judge found that Mr Narayan’s conduct towards Mrs Narayan substantially mitigated her conduct.  The Judge found also that, through her lawyers, Mrs Narayan had cooperated in the investigation and prosecution of the offence.  Her legal representatives had provided to the DPP a report of an expert, which clarified how she had poured petrol on her husband and set him alight.  Before this was done, prosecution experts had been acting on an incorrect hypothesis.  They also gave the DPP a statement signed by Mrs Narayan, which set out just what she did.  This material became the basis upon which the trial proceeded.  It amounted to, or almost to, an admission of guilt of manslaughter.  The DPP accepted that these matters amounted to special reasons, while disputing the weight that the Judge gave to them.  The Judge treated earlier offers to plead guilty to manslaughter on the basis of unlawful and dangerous act, a basis later abandoned by Ms Narayan, as an aspect of cooperation.

22. Accordingly, as special circumstances existed the Judge had to decide whether they supported the fixing of a non-parole period shorter than the mandatory period.  The process to be followed was described by Doyle CJ, Duggan, Anderson and White JJ in R v A, AD [2011] SASCFC 5 (the Court was there dealing with the offence of murder which attracted a mandatory period of 20 years’ imprisonment):

    [40]In considering whether a non-parole period shorter than the mandatory period should be fixed, the court must first consider whether “special reasons” exist. If “special reasons” do not exist, there is no power to fix a non-parole period shorter than 20 years. It is a departure from established principles to pick out particular factors in this way, but that is what Parliament has done in s 32A(3).

    [41]If “special reasons” exist, the court can fix a non-parole period shorter than the mandatory period, but only if those special reasons support fixing a non-parole period that is shorter than the prescribed period.  This means that the “special reasons” must warrant or support the fixing of a non-parole period shorter than the mandatory period.

    [42]The court has to ask itself whether, bearing in mind that a non-parole period of 20 years is appropriate for an offence at the lower end of the range of objective seriousness, the special reasons present in the case warrant or support a shorter non-parole period for this offence and this offender.

    [43]This is a complicated process.  It will cause difficulty for sentencing courts.  We cannot identify any good reason for sentencing in this fashion.  But that is Parliament’s choice.

    [44]It is necessary to emphasise that the presence of “special reasons” does not mean that the court can fix a non-parole period in accordance with existing or established principles.  The presence of factors amounting to “special reasons” merely enables the court to consider whether those factors warrant or support a non-parole period shorter than the mandatory period.

23. In particular, the Judge had to bear in mind the circumstance that the mandatory period (four fifths the length of the head sentence) represented “… 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”: s 32A(1) of the Act.

24. The Judge said that he could consider the personal circumstances of Mrs Narayan to the extent that they caused her to react as she did to Mr Narayan’s treatment of her on the morning in question.  I have outlined those circumstances. 

25. The Judge decided that the special circumstances that he found to exist could support the fixing of a non-parole period less than the mandatory period.  He fixed a non-parole period of three years.

26. The Judge directed that the sentence should be suspended.  He recognised that suspension is infrequently appropriate for an offence of manslaughter.  He had regard to the circumstances of the case, to powerful evidence that Mrs Narayan was a good person, admired by many, and to the needs of her family.  He found that the risk of her offending again was minimal.  The Judge accepted that she was truly remorseful, and punished herself by regular fasting and in other ways.  He found there was no need for personal deterrence.  He allowed for the need for punishment and for general deterrence to be considered.

27. Mr Kimber accepts that the circumstances in which the offence of manslaughter may be committed can vary greatly.  There is limited scope for general pronouncements about the appropriate penalty for manslaughter.  Accordingly, this is an offence for which sentences will vary widely, from a relatively short suspended sentence through to a lengthy sentence of imprisonment to be served.  Mr Kimber did not argue that the Court should attempt any general pronouncement.

    Head Sentence

28. In his written outline Mr Kimber submitted that the offence was not at the lower end of the range of objective seriousness, and that the Judge erred in finding that it was.  At the hearing he withdrew that submission.  The Judge did not make that finding.  But he maintained the submission that the Judge erred in treating the offence, considered as a whole, as at the lower end of the range of seriousness.  The Judge did not make a specific finding that the offence was at the lower end of the range of seriousness for offences of its kind, but such a finding is implicit in his reasons. 

29. The circumstances relied on by Mr Kimber are as follows.  First, that Mrs Narayan “armed herself” with petrol and a means of ignition.  While this is part of the picture, Mrs Narayan was in a distressed and confused state of mind, and cannot be said to have “armed herself” in a calculated manner.  Next, the circumstance that she decided to confront Mr Narayan after “a considerable period of reflection” in the early hours of the morning.  To my mind, this was a period of time in which she was in a state of emotional and mental turmoil.  To call it a “period of reflection” does not reflect its nature.  Next, the circumstance that Mrs Narayan did not arm herself because she feared violence, but with a view to burning Mr Narayan.  But that, to my mind, is again part of her disturbed and disordered thinking.  He argued that her motive was “jealousy at the breakdown of the relationship”.  I cannot accept that characterisation of the situation as adequate.  He relied on the circumstance that Mrs Narayan acted with the intent to inflict serious harm.  That is a relevant factor.

30. Mr Kimber submits that the offence was not at the lower end of the range of seriousness and required a heavier head sentence.  He made the following further points to support that submission.

31. There was no suggestion that Mr Narayan was threatening Mrs Narayan in any way on the morning in question.  He was in bed.  When she came to the bedroom he turned his back on her.  She was not afraid of what he might do.  She was the one who introduced the weapon (the petrol and the candle) into what might turn out to be a volatile and unpredictable situation.  This Court has said on many occasions that people must be deterred from introducing weapons or dangerous objects into situations, including domestic disputes, that could involve unexpected or impulsive action.  That was what Mrs Narayan had done.  She admitted that when she threw the petrol, she wanted to hurt Mr Narayan.  She was acting out of jealousy, or because she wanted to keep Mr Narayan for herself.  In the end Mr Kimber submits this was a case of infidelity by Mr Narayan, and involving the breakdown of a marriage.  Such events are not rare, and the courts must deter violence in such situations, and the introduction of weapons or objects that might prove dangerous.

32. I agree with Ms Powell QC, counsel for Mrs Narayan, that this is not an adequate characterisation of the circumstances.  Mrs Narayan was in a deeply disturbed and highly confused state.  Her conduct demonstrates that.  She thought that somehow she had to save the marriage.  Her plan to mark Mr Narayan by burning him was unrealistic, reflecting her confused state.  In her mind she was not about to confront her husband in circumstances that might take an unexpected turn.  She was not arming herself with a weapon.  The case bears no resemblance to that of an angry woman, armed with a dangerous weapon, going to confront a man whom she believes to be unfaithful, and with a view to “having it out with him”.  Her motive was not jealousy.  It was to save the marriage and to keep the family together.  Her plan to mark Mr Narayan by burning him could never have succeeded.  Nor could this have saved the marriage.

1. The case is unusual, but that is not the point.  The point is that, seen in context, this case is quite different from the kind of case identified by Mr Kimber.  I consider that the offence is at the lower end of the range of seriousness for offences of its kind, if that is the relevant question to ask.  That question is a relevant question but, in my opinion, the answer is by no means decisive.  The fact is, the offence is a serious one because Mrs Narayan took her husband’s life.  But the features identified by Mr Kimber are not present, or at least the case cannot be characterised in the manner in which he does.  The basis upon which he submits that the case called for a heavy head sentence is not made out.

2. I turn to the other points relevant to the fixing of the head sentence.  In argument some of these were dealt with either in connection with the fixing of a non-parole period or in connection with the decision to suspend.  It is preferable to deal with all of them here, although they, or some of them, are relevant at later stages.

3. Mr Kimber submits that the offers to plead guilty to manslaughter were entitled to very little weight.  Mrs Narayan did not in fact plead guilty to that charge, as she could have.  She pursued the chance of a complete acquittal.  There is some force in that submission.

4. Mr Kimber submitted that the head sentence, if allowed to stand, could lower the standard appropriate to cases in which serious injury is intended, but death does not result.  I do not agree.  Any decision in this case is a decision based on the facts of this case, and could not be regarded as setting any kind of standard for a different kind of case.

5. I agree with Ms Powell that the cooperation by Mrs Narayan and her advisers with the DPP at the trial stage is a significant factor, and entitled to considerable weight.  I refer to the expert report provided to the DPP, which came with a signed statement from Mrs Narayan.  The approach taken is commendable.  It avoided needless confusion during the trial, and enabled the prosecution to present its case on what appears to have been more or less common ground.  This demonstrates a genuine desire to cooperate with the administration of justice.

6. I agree with Mr Kimber that the impact of imprisonment on Mrs Narayan’s family was of little weight.  In this respect I differ from the Judge.  The needs of her children were of the same order as one finds in many cases when a parent faces imprisonment.  Mrs Narayan’s mother and grandmother had come to Adelaide after the death of Mr Narayan and because of that death, and the need of the children for care.  Mrs Narayan’s mother was able to care for the grandmother, as she had done before.

7. I return to the question of whether the head sentence is manifestly inadequate. The fixing of the head sentence is not controlled by s 32 or by s 32A of the Act. The head sentence provides the basis for the mandatory period, but is not affected by the applicability of the mandatory period.

8. In my opinion there were powerful mitigating circumstances.  The sentence was merciful, but not so low as to indicate an error of principle.  The sentence is within an acceptable range in my opinion.

   The non-parole period

9. I turn to the question of the mandatory period.  Reduced to months, the mandatory period was 57.6 months.  The Judge fixed a non-parole period of 36 months. 

10. As I have already said, the Judge had to bear in mind that the mandatory period was appropriate for an offence at the lower end of the range of objective seriousness. Section 32A requires the Court to postulate an offence of manslaughter at the lower end of the range of objective seriousness. But the circumstances of manslaughter are so variable that it is difficult, if not impossible, to postulate a typical offence of manslaughter at the lower end of the range of objective seriousness. This is a difficulty that the Judge recognised. A further difficulty arises from the background of Mr Narayan’s mistreatment of Mrs Narayan. That is what led to Mrs Narayan losing control of herself in response to her husband’s provocation on the morning in question. Is this background of mistreatment an aspect of the “objective seriousness” of the postulated offence or not?

11. To my mind the best one can do in a case like this is to proceed on the basis that the mandatory period, four-fifths the length of the head sentence, is appropriate for an offence of causing death in circumstances reduced from murder to manslaughter by the provocation of the victim, and appropriate for such an offence at the lower end of the range of objective seriousness.  The Judge then had to consider whether, bearing that in mind, the matters identified as special reasons supported a non-parole period shorter than the mandatory period.

12. This is a complicated process.  There is an air of artificiality about it.  One cannot help wondering what the exercise achieves in terms of a meaningful sentencing exercise.  But it is what the Act requires. 

13. As I noted, Mr Kimber, in his written outline, submits that the Judge erred in finding that the offence by Mrs Narayan was at the lower end of the range of objective seriousness. But the Judge did not so find. He had to proceed as outlined above. That is, bearing in mind the mandatory period for an offence (hypothetical) at the lower end of the range of objective seriousness, did the special reasons that the Judge found to be present in this case support and warrant a non-parole period shorter than the mandatory period? This is a process of reasoning closely confined by s 32A(3) of the Act. In deciding whether a period shorter than the mandatory period is appropriate, the Judge can have regard only to the special reasons that the Judge finds to exist. The issue is not whether the offence in question is at the lower end of the range of objective seriousness.

14. The DPP conceded before the sentencing Judge that special reasons existed for the purposes of s 32A(3).

15. The DPP accepted then and on appeal that the conduct of Mr Narayan before the morning in question, and on the morning, substantially mitigated Mrs Narayan’s conduct.  Before the sentencing Judge the DPP accepted that Mrs Narayan’s circumstances, her prolonged mistreatment and its effect on her, could also be taken into account because these circumstances were inseparable for Mr Narayan’s conduct.  On appeal, Mr Kimber took a somewhat different approach.  He submits that Mr Narayan’s conduct is already accounted for by the verdict of guilty of manslaughter on the basis of provocation.  He submits that the same conduct cannot be brought to account again when considering the non‑parole period, or in the alternative that it is entitled only to minimal weight.  He submits that Mr Narayan’s conduct has already had its effect, in reducing the offence to manslaughter and thereby attracting a sentencing range quite different from that in the case of murder.

16. I do not agree.  As the plurality said in R v A, D, referring to the mandatory period:

    [33]The court must consider whether to fix a non-parole period that is longer, the same as or shorter than this period.  It will not always be necessary to break the matter up into three separate questions.  Experience indicates that often only one of the three options will be realistically open.  But in the end they are the options open to the court.  The task of the court is no longer to fix the appropriate non-parole period according to established principles.

    [34]However, while there are distinct differences between the fixation of a non‑parole period according to established principles, and according to the new provisions, the process remains one in which the punitive, protective and rehabilitative purposes of fixing a non-parole period remain relevant:  cf R v Barnett at [49] Vanstone J.

    Although Mr Narayan’s conduct on the morning in question, coupled with Mrs Narayan’s loss of control, mean that the offence is manslaughter rather than murder, it is still appropriate when considering the non-parole period to bear in mind that the conduct of Mr Narayan substantially mitigated Mrs Narayan’s conduct.  That is the fact.  Her conduct was the sudden loss of control, resulting in her throwing the petrol and then igniting it.

17. The Court at this stage of things is considering the fixing of a non-parole period.  One cannot lose sight of the fact that the punitive, protective and rehabilitative purposes for fixing a non-parole period remain relevant, as the plurality said in R v A, D.  The Judge rightly decided that Ms Narayan is a good candidate for parole, and likely to respond to the early availability of parole.  The circumstances of the offending indicates that Mrs Narayan is unlikely to offend again.  When one bears in mind that the existence of special reasons is relevant to the question of whether the court may fix a shorter non-parole period than the mandatory period, it seems to me clear that the Judge properly had regard to the conduct of Mr Narayan, even though that conduct became an element of the offence for which Mrs Narayan was convicted.

18. Mr Kimber accepts that the cooperation with the DPP at trial also amounts to a special circumstance, but is of limited weight. Similarly, he submits that the offer to plead guilty to manslaughter on the basis of provocation is entitled to only limited weight, because no such plea was entered, as it might have been. I disagree. I consider the cooperation at trial to be a significant factor. So was the offer to plead guilty on the basis of provocation, in the light of the information in the expert statement and in the light of the signed instructions that Mrs Narayan made available to the DPP. The cooperation demonstrated a genuine desire to cooperate in the administration of justice, and a willingness to lay the facts before the Court for the jury’s determination. These matters were entitled to substantial weight under s 32A(3)(c).

19. I consider that it was open to the Judge to reduce the mandatory period to the extent that he did.  Even though the mandatory period represents the non‑parole period for an offence of manslaughter at the lower end of the range of objective seriousness, the matters that constituted special reasons demonstrate that Mrs Narayan is a good candidate for an early offer of parole.   They suggest that her remorse and contrition are genuine.  They indicate that the risk of further offending is minimal.  It was open to the Judge to conclude that they supported a reduction in the mandatory period of the order that the Judge made.

20. In his written submissions, Mr Kimber argues that the non-parole period is “more consistent with the fixing of a non-parole period using past principles rather than a proper application of s 32A”. That is not a relevant comparison. He also argues that such a non-parole period would not have been appropriate before s 32A was enacted. I disagree. But again I am not persuaded that that is a relevant point.

    Decision to suspend

21. At para [26], I summarised the matters referred to by the Judge as supporting a decision to suspend the sentence.  I agree that they were all relevant factors, with the exception that I consider that the needs of Mrs Narayan’s immediate family were not entitled to any significant weight.

22. In criticising the Judge’s submission, Mr Kimber relied upon the characterisation of the offending conduct that I outlined earlier in these reasons.  For the reasons that I gave there, I do not agree that this is an adequate characterisation of the circumstances of the offending.

23. The power to suspend a sentence of imprisonment is conferred by s 38(1) of the Act. The Court may suspend a sentence of imprisonment if it considers that “good reasons exist for doing so”. This is a broad discretion, and there is not much that one can usefully say about it in the abstract. In a number of decisions Judges have accepted that suspension may be appropriate in the case of an offender who faces imprisonment for the first time, if that person is likely to benefit from an exercise of the discretion. Mrs Narayan meets those criteria. The power to suspend has been described in other cases as appropriate when an offender should be given a chance to avoid imprisonment by leading a law abiding life. Normally this will be an offender who has not previously been imprisoned. I agree with the Judge that the circumstances identified by him provided substantial support for a decision to suspend the sentence.

24. But a sentencing court must bear in mind the community interest in marking its disapproval of conduct by a sentence of imprisonment, and the community’s interest in preventing crime by deterring others from offending.  The seriousness of the offence is of particular relevance in this context.  For reasons that are obvious, the more serious the offence the less likely a court is to conclude that there is good reason to suspend a sentence of imprisonment.  At the risk of over-simplifying things, it might be said that the community interest in punishment, prevention and deterrence called for a sentence of imprisonment, and the Judge imposed one.  Mrs Narayan’s personal circumstances, her genuine contrition and her very good prospects of rehabilitation, supported a suspended sentence.  The seriousness of the offence, and the consideration of general deterrence, tended to point the other way.  The decision facing the Judge in this case was a very difficult one.  The very detailed sentencing reasons indicate the care that the Judge took.  The question of suspending the sentence is one on which minds will differ.  That is hardly surprising, when the case is a difficult one.

25. Nevertheless, having considered the case, and the arguments advanced, I am not persuaded that the Judge is shown to have erred.  In other words, I am not persuaded that it was not open to him to reach the conclusion that the sentence should be suspended.

    Disposition of the application

26. The Court grants permission to the DPP to appeal against sentence only when it is necessary to grant permission with a view to determining a matter of principle, to establish or maintain adequate standards of punishment, or to correct a sentence which reflects an error of principle:  see R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168. In this case no error of principle has been identified. Had Mr Kimber’s characterisation of the offending conduct been correct, and the Judge’s characterisation incorrect, the question of maintaining adequate standards of punishment might have arisen, but as it turns out I consider Mr Kimber’s characterisation to be incorrect. For reasons that I have indicated, I consider the head sentence and the non-parole period to be within an appropriate range. The decision to suspend a sentence of imprisonment of this length, and for an offence as serious as manslaughter, could raise an issue of principle warranting a grant of permission to appeal. But when all the circumstances are considered, the decision to suspend the sentence reflects an assessment of the circumstances, which it was open to the Judge to make, and as to which I am not persuaded that one could say that the application of principle to fact has produced an erroneous result.

27. For all those reasons I would refuse permission to appeal.

28. NYLAND J:          I would refuse permission to appeal for the reasons expressed by the Chief Justice.

29. DAVID J:              I agree that permission to appeal against the sentence imposed upon Mrs Narayan should be refused.  I agree with the reasons of the Chief Justice.

30. In particular, I am of the view that the sentencing Judge has not erred in his decision to suspend the sentence imposed.  I agree with the Chief Justice that the decision was a most difficult one, bearing in mind the unusual circumstances personal to the respondent and the seriousness of the offence.  Although each case must be decided on its particular facts, a decision to suspend a term of imprisonment where the offence is manslaughter by provocation must be rare.  Nevertheless, in my view it was open to the sentencing Judge to reach the conclusion that he did.