R v Pennington - [2015] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PENNINGTON
[2015] SASCFC 98
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Lovell)
30 July 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CONTRITION
Appeal against sentence. The appellant was convicted of the offence of recklessly causing serious harm aggravated by the fact that he stabbed his victim with a knife. The appellant had been charged with the offence of aggravated causing serious harm with intent to cause serious harm but was convicted of the alternative offence of recklessly causing serious harm. The sentencing Judge imposed a sentence of eight years with a five year non-parole period. The appellant has a history of serious criminal offending. He has spent time in jail for offences committed in Western Australia. The appellant is a traditional Aboriginal man who grew up in missions north of Kalgoorlie. He has a family history of alcohol abuse and has an alcohol addiction himself. Alcohol abuse is common in the community in which he lives.
Whether the Judge sentenced the offence as an intentional offence rather than an offence of recklessness. Whether the Judge sentenced the appellant in respect of uncharged criminal conduct. Whether the sentence was manifestly excessive. Whether the sentencing Judge had sufficient regard to the appellant’s deprived background of acute social disadvantage and intergenerational alcohol abuse and violence. Whether the sentencing Judge erred in failing to have regard to the appellant’s expressions of remorse. Whether the sentencing Judge erred by considering whether the appellant had participated in intervention programs, contrary to section 10(3)(c) of the Criminal Law (Sentencing Act) 1988 (SA).
Held per Gray and Sulan JJ (allowing the appeal):
1.       The Judge was in error by sentencing on a factual background that treated the offence as an intentional offence rather than an offence of recklessness.
2.       The Judge was in error in sentencing the appellant in relation to disposal of the weapon, which was uncharged criminal conduct.
3.       The Judge erred in failing to have regard to the remorse exhibited by the appellant.
4.       The sentence was manifestly excessive. The Judge erred in failing to have regard to the particular disadvantages faced by the appellant as a consequence of his Aboriginality.
5.       The Judge did not consider the appellant’s access to, or involvement in, treatment programs in a manner prohibited by section 10(3)(c) of the Criminal Law (Sentencing Act) 1988 (SA).
6.       Appellant resentenced to a term of imprisonment of five years with a three year non-parole period.
Held per Lovell J (dissenting):
1.       The head sentence and non-parole period fixed by the Judge were not unreasonable or plainly unjust as to fall outside the permissible range of sentences for the appellant and this offence.
2.       The appellant failed to establish that the Judge made any factual or legal errors when sentencing.
Criminal Law Consolidation Act 1935 (SA) s 23(1), s 23(3), s 243 and s 256; Criminal Law (Sentencing Act) 1988 (SA) s 3 and s 10(3)(c), referred to.
R v De Simoni (1981) 147 CLR 383; R v Olbrich (1999) 199 CLR 270; Bugmy v The Queen (2013) 249 CLR 571; Neal v The Queen (1982) 149 CLR 305; R v Grose (2014) 119 SASR 92; Houghagen v Charra (1989) 50 SASR 419; Leech v Koko (1989) 51 SASR 131; Ingomar v Police (1998) 72 SASR 232; R v Fernando (1992) 76 A Crim R 58; R v Fuller-Cust (2002) 6 VR 496; Munda v Western Australia (2013) 249 CLR 600, considered.

R v PENNINGTON
[2015] SASCFC 98
Court of Criminal Appeal: Gray, Sulan and Lovell JJ
GRAY AND SULAN JJ.

This is an appeal against sentence.
Introduction
On 23 December 2014, following a trial before a Judge and jury in the District Court, the defendant and appellant, Jason Phillip Pennington, was convicted of the offence of recklessly causing serious harm. The offence was aggravated because he stabbed his victim, Rebecca Windlass, with a knife.[1] The maximum penalty for the offence is imprisonment for 19 years. The defendant had been charged with the offence of aggravated causing serious harm with intent to cause serious harm[2] but was convicted of the alternative offence as set out above.
[1] Criminal Law Consolidation Act 1935 (SA) section 23(3).
[2] Criminal Law Consolidation Act 1935 (SA) section 23(1).
The defendant was sentenced by the trial Judge to eight years’ imprisonment with a non-parole period of five years, to commence on 19 September 2013, the date the defendant was arrested.
The circumstances of the offending the subject of the present appeal were summarised by the Judge when sentencing as follows:
On 2 August 2013 you had both been out during the day at Yalata and at some stage in the evening you both arrived at Mark Young’s house. You had both been drinking and you and she were heard loudly arguing. You then decided to get a steak knife out of the kitchen drawer and stab Ms Windlass in the back as she sat on the couch in the lounge room. Your stab penetrated her chest cavity and punctured her lung, leaving her with a life threatening injury. She cried out in pain and others rushed in.
You just ran away, failing to help her or render any assistance whatsoever. To their great discredit, the several other Aboriginal men in the house also scattered and were it not for the actions of a single 19-year-old woman who stayed, rendered assistance and called for help so that your victim could be taken to the clinic, then air lifted to Adelaide, the evidence establishes that Ms Windlass may well have died within hours. So if it were not for the actions of the one responsible person who was there that night, you may be facing a manslaughter charge.
You conducted an unprovoked, cowardly and vicious attack on a defenceless woman whose only crime appears to have been to argue with you.
When police attended the house a little later in the evening, the weapon could not be found and the rest of the knives in the house, including the whole set of steak knives in the kitchen drawer had all been removed. You were the only person who had a motive to get rid of the weapon you used and any others like it.
I find proven beyond reasonable doubt, based on all the circumstantial evidence on the topic led at trial, that when the others left the house you likely returned, removed and disposed of the weapon you used and in a clumsy attempt to hinder the police removed other similar knives from the house to try and make things harder for the police.
[Emphasis added.]
The defendant was granted permission to appeal on the basis that the sentence was manifestly excessive and that, contrary to section 10(3)(c) of the Criminal Law (Sentencing Act) 1988 (SA), the Judge erred by having regard to the defendant’s failure to participate in intervention programs. The defendant also seeks permission to appeal on the grounds that the Judge erred in his factual basis for sentencing.
Errors of Sentencing Principle
As noted above, the defendant was acquitted of the offence of aggravated causing serious harm with intent to cause serious harm. He was convicted of the offence of aggravated recklessly causing serious harm. Plainly the jury were not satisfied that the defendant was guilty of the primary offence, which required a specific intent to do serious physical or mental harm. The Judge proceeded to sentence the defendant on the basis that the offence was intentional.
The Judge considered that the defendant had made a decision to get a steak knife out of the kitchen drawer and stab Ms Windlass in the back as she sat on the couch. On the appeal, it was submitted that the evidence at trial did not provide a basis for the conclusion that the defendant had used a knife from the drawer. There was only evidence from one witness as to the appearance of the knife and little or no basis on the evidence at trial for the conclusion that the set of steak knives in the drawer was something known to the defendant, or of which he had any knowledge. This complaint as to the Judge’s conclusion that the defendant decided to obtain a steak knife from the kitchen drawer is directly linked to the Judge’s finding that the defendant selected the weapon with the specific intent of stabbing Ms Windlass and doing her serious harm.
The Judge’s description of the defendant’s act is to be coupled with his use of the term “vicious attack”, which further suggests that the Judge was treating the offence as having been committed with specific intent rather than reckless conduct on the defendant’s part. This was the basis of the prosecution case in support of the primary offence and was the subject of the verdict of not guilty. This error resulted in the Judge sentencing the defendant for the offence on which he was acquitted.
There was a further matter. The Judge sentenced the defendant on the basis that he had returned to the scene of the crime after others had left with a view to dispose of the weapon used to stab Ms Windlass, and in an attempt to hinder the police, he removed other similar knives from the house. Hindering the police in this manner is separate criminal conduct, involving an offence or offences not charged. It was an error of law for the Judge to bring to account these matters when sentencing. As Gibbs CJ observed in De Simoni:[3]
... the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. ... The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
[3] R v De Simoni (1981) 147 CLR 383, 389.
This principle was confirmed in Olbrich, where Gleeson CJ, Gaudron, Hayne and Callinan JJ stated:[4]
Finally, inquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation. The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged.
[Footnotes omitted. Emphasis added.]
[4] R v Olbrich (1999) 199 CLR 270, 278-9.
These findings of the Judge amount to a conclusion that the defendant had committed the offence of concealing things that may be required in evidence at judicial proceedings contrary to section 243 of the Criminal Law Consolidation Act 1935 (SA).[5] Such an offence carries a maximum term of imprisonment of seven years. The conduct attributed to the defendant in returning the scene to dispose of evidence to hinder the police could also give rise to an offence against section 256 of the Criminal Law Consolidation Act.[6]
[5] A person who—
(a)fabricates evidence or alters, conceals or destroys anything that may be required in evidence at judicial proceedings; or
(b)uses any evidence or thing knowing it to have been fabricated or altered,
with the intention of—
(c)influencing a decision by a person whether or not to institute judicial proceedings; or
(d) influencing the outcome of judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time),
is guilty of an offence.
Maximum penalty: Imprisonment for 7 years.
[6] 256—Attempt to obstruct or pervert course of justice or due administration of law
(1) A person who attempts to obstruct or pervert the course of justice or the due administration of the law in a manner not otherwise dealt with in the preceding provisions of this Part is guilty of an offence.
Maximum penalty: Imprisonment for 4 years.
It is to be accepted that the defendant stabbed Ms Windlass with a knife. However, the evidence does not allow any conclusion as to the nature of that knife. The only evidence of the appearance of the knife came from a witness at the scene who described seeing Ms Windlass sitting on the couch bleeding and the defendant standing in the lounge room holding a knife in his hand that was described as a black knife about the size of a biro. The medical practitioner who first treated Ms Windlass did not give evidence. Medical evidence came from a practitioner who took on the care of Ms Windlass 24 hours after she was admitted to the Royal Adelaide Hospital. That practitioner was unable to do more than describe the knife having “definitely gone all the way in because [Ms Windlass’] lung had collapsed”.
Simply there was no evidence to support a finding that the defendant decided to get a steak knife out of a kitchen drawer with the intent of stabbing Ms Windlass in the back as she sat on the couch in the lounge room.
There was no evidence to allow a finding that the defendant had returned after others had left to dispose of the weapon and to remove all of the steak knives or the cutlery set from the kitchen drawer. There was evidence that a number of people had access to the home at relevant times. The Judge’s finding that the defendant engaged in conduct of disposing of a weapon and removing all similar knives from the house cannot be sustained. Further, and more importantly, the alleged conduct constituted separate criminal offences that had not been charged and for which the defendant should not have been sentenced.
Other Issues
Before coming to discuss other issues raised on the appeal, it is convenient to address the defendant’s antecedents.
The defendant has a history of serious criminal offending. The majority of his prior offending occurred in Western Australia. In 2001, he was sentenced in respect of three offences of sexual penetration without consent and an offence of robbery whilst armed to a total term of imprisonment of ten years. In 2005, he was convicted of the offence of aggravated unlawful wounding and the offences of possessing a weapon with intent to cause injury and with intent to cause fear. He was sentenced to a total term of imprisonment of seven months and one day. Between 2007 and 2011, his offending primarily related to the use of a motor vehicle and included the offences of dangerous driving occasioning grievous bodily harm and of driving under the influence of alcohol. In 2013, he was convicted of the offence of unlawful assault thereby causing bodily harm in circumstances of aggravation and breaching protective bail conditions. He was sentenced to a total term of imprisonment of eight months, suspended on his entry into a 12 month good behaviour bond.
The defendant’s personal antecedents were addressed by the Judge in the following terms:
You were born at Cundeelee Mission, east of Kalgoorlie, one of five children born to your elderly traditional father and young wife. After two years your mother left. At some stage the mission was disbanded and the family moved between other communities in the region.
The 2001 sentencing remarks indicate you attended school to year five but had poor attendance and, as a result, have poor literacy and numeracy skills. You were, however, employed for three years on a community development program prior to the first conviction to which I have referred.
You commenced drinking at 17, which you did periodically. When you were imprisoned for the rapes at 21, the sentencing remarks show you were eligible for several courses in prison but, from your counsel’s submissions, it appears you may not have undertaken any.
A pre-sentence report recently completed indicates you told that officer that you, in fact, attained a year 12 level at school prior to starting work at age 17, so it is not completely clear what the true educational situation is. It may be, indeed, it is likely that you went back and did year 12 at a later time. You said to that officer that your father was drunk and violent when you were a child but that you now have a good relationship with him. You told that officer you drink once, maybe twice a week.
...
You have three children, one with Ms Windlass and two with your previous partner Narelle Cameron. Ms Cameron died some time ago. Your lawyer says she died as a result of drinking.
I accept the general background of disadvantage you grew up within and the types of difficulties and challenges that background provides for people in your situation.
When sentencing the defendant the Judge remarked:
What is unfortunately absent on this occasion, as in previous occasions, seems to be any kind of remorse or empathy with your victims, the women you have brutalised over the years.
You have denied responsibility for these events so there can be no credit for either a plea of guilty or any remorse. You were given a chance on the last occasion to do the right thing when the court released you on a bond to be of good behaviour. You abused that chance by committing this serious offence whilst being on a bond for assaulting the very same woman. What you do not seem to understand is that you cannot attack women like this and that, if you do, you will be severely punished. Many Aboriginal women have a difficult enough life as it is, without being raped, hit with rocks and stabbed by people like you.
You will be convicted and sentenced to eight years imprisonment. There will be a non-parole period of five years.
The sentence will be backdated to commence on the day you were arrested, 19 September 2013.
Manifestly Excessive
Pursuant to a grant of leave, the defendant complained that the sentence imposed was manifestly excessive. It was contended that the primary reason for the excessive sentence was that the Judge failed to take into account, sufficiently, the defendant’s deprived background of acute social disadvantage and intergenerational alcohol abuse and violence.
Counsel contended that intergenerational alcohol abuse was widespread amongst traditionally oriented Aboriginal people not living on-country. It was pointed out that the defendant grew up in missions north of Kalgoorlie. His mother died of alcohol abuse, as did his first wife. His father is a traditional man who has gone to live in a remote, dry community at Tjuntjuntjara. Tjuntjuntjara is his father’s traditional country and most of that community are originally from the Cundeelee and Coonana missions.
It had been submitted to the sentencing Judge that in effect the defendant was living between two worlds and not coping with either. This was a result of the degrading effects of his alcohol abuse and his family’s alcohol abuse. This abuse was endemic in his society and at the missions in Cundeelee and Coonana.

In Bugmy,[7] the High Court reaffirmed the approach taken by Brennan J in Neal.[8] The plurality observed:[9]
[7]    Bugmy v The Queen (2013) 249 CLR 571.
[8]    Neal v The Queen (1982) 149 CLR 305.
[9]    Bugmy v The Queen (2013) 249 CLR 571, 592-4.
An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence. In this respect, Simpson J has correctly explained the significance of the statements in R v Fernando:
“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.”
The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender’s conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender’s abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. To do so, he said, is to acknowledge the endemic presence of alcohol in Aboriginal communities and:
“the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.”
The other respect in which Wood J proposed that an offender’s Aboriginality may be relevant to the sentencing determination is in a case in which because of the offender’s background or lack of experience of European ways a lengthy term of imprisonment might be particularly burdensome. In each of these respects, the propositions enunciated in R v Fernando conform with the statement of sentencing principle by Brennan J in Neal v The Queen:
“The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.”
Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
[Footnotes omitted.]
The basic principle underlying the excerpted passage from Neal as accepted by the plurality in Bugmy is one of individualised justice. While membership of a particular ethnic or other group is, without more, irrelevant, membership of a particular ethnic or other group becomes relevant when it tells the court something about the offence or the offender relevant to the determination of the appropriate penalty.
The High Court has made clear that Aboriginality, on its own, is not a factor in mitigation and that a background of deprivation will not necessarily lead to a reduced sentence. As was observed by the plurality in Bugmy:[10]
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[Footnotes omitted.]
[10] Bugmy v The Queen (2013) 249 CLR 571, 595 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
In Grose, this Court observed that:[11]
While in Bugmy the Court’s focus was upon factors of social and economic disadvantage and their relevance to sentence, those aspects are not exhaustive of matters to which a court sentencing an Aboriginal person may need to be alive. Underlying the decisions of Fernando, Bugmy and Munda is the fundamental principle of individualised justice and the relevance of personal factors to the sentencing exercise. In addition to factors of social and economic disadvantage that may be present, the court may need to consider cultural factors or the unique history and treatment of a particular ethnic group. Such factors may be relevant to the court’s assessment of the gravity of the offending and the defendant’s blameworthiness. This may impact the choice of penalty and purposes of punishment.
[Footnotes omitted.]
[11] R v Grose (2014) 119 SASR 92, 103.
Counsel appearing for the defendant on appeal drew attention to South Australian authorities addressing sentencing in relation to the Yalata community. Particular reference was made to Houghagen v Charra,[12] Leech v Koko[13] and Ingomar v Police.[14] It was submitted that these authorities disclose that even before Bugmy and Fernando,[15] the South Australian Supreme Court has been aware of the particular history of disadvantage applying to the cases of western desert people from the Yalata community.
[12] Houghagen v Charra (1989) 50 SASR 419.
[13] Leech v Koko (1989) 51 SASR 131.
[14] Ingomar v Police (1998) 72 SASR 232.
[15] R v Fernando (1992) 76 A Crim R 58.
It was further submitted that the problems associated with the Yalata community were known and well-established to the South Australian Courts. Further, that the unique history of the Aboriginal people removed from the western desert to Yalata, Cundeelee and Coonana, was a matter to be taken into account as the unique history and treatment of a particular ethnic group. It was said that the factors identified in Grose, and this unique history, were relevant to the Court’s assessment of the gravity of the defendant’s offending and his blameworthiness.
Attention was drawn to Fuller Cust, where Eames J observed:[16]
To ignore factors personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself. Not only would that offend principles of individual sentencing which apply to all offenders but in this case it would fail to identify the reasons for his offending and, in turn, the issues which have to be addressed if rehabilitation efforts are to successfully be adopted so as to ensure that he does not re-offend and, in turn, to ensure the long-term safety of the public.
[16] R v Fuller-Cust (2002) 6 VR 496, 520.
Counsel for the defendant acknowledged that there needed to be a balancing of community protection and the protection of Aboriginal victims, against the mitigating effects of a deprived background of acute disadvantage, and of intergenerational alcohol abuse and violence.
It was the primary submission of the defendant that the balancing exercise referred to in Bugmy did not take place and, as a consequence, the Judge gave too much weight to the factors of general and personal deterrence. The defendant asked the Court to conclude that the Judge’s sentence was manifestly excessive in the circumstances and that his Honour’s sentencing discretion miscarried.
It was the submission of the Director of Public Prosecutions that the Judge did take into account the defendant’s deprived background of acute social disadvantage and intergenerational alcohol abuse and violence. Attention was drawn in particular to the observations of the High Court in Munda v Western Australia:[17]
Mitigating factors must be given appropriate weight, but they must not be allowed "to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence." It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.
[17] Munda v Western Australia (2013) 249 CLR 600, 619.
The Director submitted that the sentence imposed was appropriate having regard to the following six factors: the circumstances of the offence; the defendant’s antecedents, which include convictions for offences of similar nature and other serious offences; the fact that the defendant was on a bond for similar offending in respect of the same victim when he committed this offence; the impact and effect on the victim; the need for general deterrence and the need for personal deterrence. It was then contended that these factors, notwithstanding the defendant’s background of social disadvantage, violence and alcohol abuse, also had to be properly taken into account in the sentencing process. Therefore it was said there was no basis for a lesser sentence being imposed in this case.
Counsel appearing for the defendant made extensive submissions to the Judge. In the course of those submissions, counsel explained to the Judge that the defendant was a traditional Aboriginal man, who had spent his formative years with his parents at the Cundeelee mission. There was a family history of alcohol abuse. His mother died from that abuse. His father had been a violent alcoholic causing the defendant much suffering. Counsel described the defendant as a man “grappling with two different worlds”. In one of those worlds he has an important place within his own community, that is his traditional world. He is respected in his own culture and own community. His alcohol use and abuse has impacted on the role he plays in this community. If it were not for his drinking, it was submitted that this offending would not have occurred. It was said that the root of his problem was alcohol addiction. In the past, notwithstanding that he had been in and out of jail, he has received no assistance or treatment in regard to this addiction. The Judge was informed that if he was to remove himself from the community, a community in which alcohol abuse was prevalent, to be away from temptation, he would be totally cut-off from his extended family and the community. It was said that the defendant wants to be a part of his community, wants to stop the alcohol abuse, but needs substantial assistance and treatment to achieve these goals. It was pointed out that a former partner had died from alcoholism and that his current partner, Ms Windlass, the victim of the present offending, was also an alcoholic. As the Judge noted, at the time of the offending, the defendant and Ms Windlass were arguing and they were both drunk. It was said that the situation of the defendant was a direct result of the circumstances in which he spent his formative years, the problems of endemic alcoholism in the communities in which he has lived, and his inability as a result of these difficulties to address and resolve his addiction to alcohol.
In the course of sentencing, the Judge remarked:
I accept the general background of disadvantage you grew up within and the types of difficulties and challenges that background provides for people in your situation.
The only challenge made by the prosecution to the defendant’s submissions was that the presentence report did not support the contention that the defendant had acknowledged he has a problem with alcohol. Although the Judge spoke of accepting the context of general disadvantage and the types of difficulties and challenges to persons in the defendant’s situation, the Judge did not address the particular circumstances of this defendant. The earlier remarks of Eames J in Fuller Cust as extracted above are pertinent. The Judge failed to identify, in his remarks, the link between the intergenerational alcohol abuse, the circumstances of the defendant, a traditional Aboriginal man not living on-country, and his offending conduct. It would appear that the Judge failed to adequately understand the submissions of defence counsel that the defendant was living between two worlds and not coping with either because of the degrading effects of alcohol on him, on his family, upon his extended family and upon his community. He was addicted to alcohol and had no one to turn to because they were all in the same position. The question for the Judge was whether his offending behaviour was understandable and explicable in the context of his early life and upbringing on those missions and his subsequent experiences. These were matters directly relevant to an assessment of blameworthiness and culpability.
It does not appear that the Judge gave consideration to the following matters when sentencing:
-should the defendant’s history of alcohol abuse have been taken into account as a specific mitigating factor;
-would imprisonment have been particularly burdensome upon the defendant;
-what was the attitude of the defendant’s home communities to the defendant’s offending; and
-what were his prospects of rehabilitation on-country or within his home communities?
In our view the above important considerations were not analysed or addressed.
Remorse
The Judge when sentencing remarked:
What is unfortunately absent on this occasion, as in previous occasions, seems to be any kind of remorse or empathy with your victims, the women you have brutalised over the years.
You have denied responsibility for these events so there can be no credit for either a plea of guilty or any remorse. You were given a chance on the last occasion to do the right thing when the court released you on a bond to be of good behaviour. You abused that chance by committing this serious offence whilst being on a bond for assaulting the very same woman. What you do not seem to understand is that you cannot attack women like this and that, if you do, you will be severely punished. Many Aboriginal women have a difficult enough life as it is, without being raped, hit with rocks and stabbed by people like you.
During sentencing submissions counsel for the defendant specifically addressed remorse and in that respect, informed the Judge that the defendant apologised for what happened. In the course of the presentence report the defendant informed the writer that he was sorry for what had happened and his counsel specifically submitted that he was not uncaring or uninterested.
At trial Ms Windlass did not give evidence. The defendant did not give evidence. No evidence was called on the defence case. No victim impact statement was provided. The defendant did not make any statement to the police. At trial the evidence suggested that both the defendant and Ms Windlass were grossly intoxicated. The effect of the defence was to put the prosecution to proof. The defendant has said that he has no memory of the incident at all. In these circumstances, in our view, it is unsafe to draw a conclusion that there is no contrition or remorse. As the defendant apparently had no memory of the incident, it was not unreasonable or inappropriate for the matter to proceed to trial. The trial did not involve Ms Windlass reliving a traumatic event or undergoing a further traumatic event.
It was against this background that the submissions of counsel should have been assessed. In our view, to conclude in these circumstances that there was no remorse was inappropriate. We consider the failure to have regard to any expressions of remorse by the defendant was an error.
Participation in Intervention Programs
Section 10(3)(c) of the Sentencing Act provides:
(3)In determining the sentence for an offence, a court must not have regard to any of the following:
(c)     the fact that the defendant—
(i) has not participated in, or has not had the opportunity to participate in, an intervention program; or
(ii)has performed badly in, or has failed to make satisfactory progress in, such a program.
Intervention program is defined in section 3 of the Sentencing Act:
intervention program means a program that provides—
(a)     supervised treatment; or
(b)     supervised rehabilitation; or
(c)     supervised behaviour management; or
(d)     supervised access to support services; or
(e)     a combination of any one or more of the above,
designed to address behavioural problems (including problem gambling), substance abuse or mental impairment;
Counsel for the defendant said that the Judge took into account this factor when observing:
You commenced drinking at 17, which you did periodically. When you were imprisoned for the rapes at 21, the sentencing remarks show you were eligible for several courses in prison but, from your counsel’s submissions, it appears you may not have undertaken any.
Counsel for the Director submitted that prison courses do not fall within the definition of intervention program but that even if they did, the Judge’s statement did not fall foul of that provision.
Whether or not a course offered in prison falls within the definition of intervention program is a question of fact to be determined with regard to the specific course in issue. No evidence as to the content and type of prison courses offered in Western Australia was provided to the Court. In our view the comment of the Judge merely noted that the defendant may not have completed any prison courses in respect of his alcohol addiction. As there was no evidence as to whether the defendant was offered, or undertook, such courses during his time in custody, we do not believe the Judge could have considered it in the manner prohibited by section 10(3)(c).
Discussion
In our view, the Judge was in error in treating the offence as an intentional offence rather than an offence of recklessness. Further, the Judge was in error in sentencing the defendant in respect of uncharged criminal conduct. We consider that the Judge erred in failing to have regard to the remorse exhibited by the defendant. Further, the Judge erred in failing to have regard to the particular disadvantages faced by the defendant as a consequence of his Aboriginality. We consider that the sentence imposed was manifestly excessive.

It is appropriate that this Court orders that the sentence imposed by the trial Judge be set aside. It is also appropriate that this Court should resentence the defendant.
The defendant’s criminal conduct was very serious. The conduct can be fairly described as an incident of domestic violence. The defendant’s criminal antecedents preclude the extending of the leniency available in the case of a first offender. The circumstances call for the imposition of an immediate custodial sentence. General and personal deterrence are important considerations.
There is little doubt that the consumption of alcohol was the precipitating cause of the defendant’s offending. His history of alcohol dependence and exposure to violence are relevant considerations. This history, as put by defence counsel, was not challenged and provides an explanation for the defendant’s conduct. His disadvantaged background is a relevant consideration in the circumstances of this proceeding.[18]
[18] R v Fernando (1992) 76 A Crim R 58; Bugmy v The Queen (2013) 249 CLR 571; Munda v The Queen (2013) 249 CLR 600.
Furthermore, it should be noted that after having served a lengthy sentence when he was in his early twenties, the defendant was law-abiding for some eight years. This suggests that with adequate treatment he has prospects for rehabilitation. This matter was not addressed by the Judge.
In our view, it is appropriate to impose a sentence of five years’ imprisonment and fix a non-parole period of three years. The sentence is to be backdated to commence on 19 September 2013.
We consider that the defendant when released from custody is in need of substantial assistance and supervision. His abuse of alcohol should be addressed. His rehabilitation into the relevant community needs to be handled with care. In all probability, he may need medical assistance as part of his rehabilitation. The need for the criminal justice system to accommodate the special needs of criminal offenders has been addressed in the Royal Commission into Aboriginal Deaths in Custody. A number of those recommendations are relevant to the assistance that should be made available to the defendant while in custody and upon his release. These recommendations have been accepted in this jurisdiction as well as others. It is to be hoped that those recommendations can be followed in the case of this defendant. Ultimately these are matters for the Department for Correctional Services and the Parole Board, however, if the type of assistance spoken of in the Royal Commission report is not provided then the prospects of the defendant not reoffending will be significantly reduced.
Conclusion
In so far as the defendant has sought permission to appeal we would grant that permission. We would allow the appeal and set aside the sentence imposed by the District Court. We would resentence the defendant to a term of imprisonment of five years. We would fix a non-parole period of three years.
LOVELL J.
On 24 November 2014, at Port Augusta, a jury convicted the appellant of one count of aggravated recklessly causing serious harm, the offending occurring on 2 August 2012. The circumstance of aggravation proved was that an offensive weapon, namely a knife, was used during the offence. The appellant was sentenced to a term of imprisonment of eight years with a non-parole period of five years. The appellant submitted on the appeal that the head sentence and non-parole period were manifestly excessive.
Background to the offending
The jury found that the appellant had stabbed his partner in the back as she sat on the couch in the lounge room of a friend’s house. The knife penetrated the victim’s chest cavity and punctured her lung leaving her with a life-threatening injury. The appellant did not remain in the house to render assistance to his injured partner. The evidence disclosed that a number of other people in the house also left without rendering assistance to the victim and it was left to a 19-year-old woman to assist. The victim was taken to a nearby medical clinic and then airlifted to Adelaide where she received appropriate treatment. Prior to the police attending someone entered the house and removed a number of knives from the kitchen drawer. The Judge for the purpose of sentencing found that the appellant had obtained the knife used in the offence from the kitchen drawer. He further found that it was the appellant who had returned to the scene and removed the knives from the kitchen drawer in a “clumsy” attempt to cover up the crime.
Background to submissions
After the verdict the sentencing Judge discussed with counsel the timing of submissions on penalty. Counsel for the appellant, Ms Burgess, stated that she would not be getting any reports. She submitted that the appellant had already spent 14 months in custody and that she would be making a submission that he should be now released on parole. The Judge indicated that, given the serious nature of the charge, there was a possibility that a materially longer sentence would be imposed. The antecedent report, which revealed prior offending, was tendered. The Judge indicated that he wanted further details relating to the previous convictions. He said that he would be prepared to order a pre-sentence report if requested. The matter was adjourned to 1 December 2014.
On 1 December 2014 there was further discussion about a time for submissions. Counsel submitted that the appellant would like to know “his bottom line as soon as possible”. Counsel indicated that her preference was for the appellant to be assessed for a report whilst in custody. She indicated that funding had been requested and that the issue was “how quickly it could be facilitated”. The Judge indicated that the offending fell into the “upper end of the range” and that there was a risk that the accused could be in prison for “a considerably longer period than he’s been in”. The Judge gave that indication to counsel to assist in determining whether a report should be obtained. The matter was adjourned for a short time for counsel to obtain instructions. Counsel subsequently told the Judge that “he understands that I would prefer to obtain a report but he’s made it reasonably clear that he would prefer to know himself the bottom line as soon as possible. He asked that the sentencing submissions be listed in two weeks time”. The Judge agreed to order a pre-sentence report.
Submissions and background of the appellant
Submissions were made on 16 December 2014. The Judge had received the pre-sentence report he had ordered. In addition, he had material from various Western Australian courts regarding the prior convictions of the appellant in that State. The material from Western Australia was extensive and provided information about the appellant’s background, details of his previous offending and included sentencing remarks. The material included pre-sentence reports.
Counsel for the appellant submitted that, having read the material from Western Australia and the current pre-sentence report, she did not maintain her earlier submission that “time in custody might be sufficient”.
The appellant was born and grew up on a mission in Western Australia known as the Cundeelee Mission near Kalgoorlie. He is one of five children born to his elderly traditional father and young wife. The appellant is currently 35 years of age and his mother died when he was aged 25 as a result of her addiction to alcohol. His father was described as a violent alcoholic and the appellant suffered as a result of his father’s behaviour and alcoholism. The appellant is a traditional Aboriginal man and has “gone through business”. When not in custody the appellant performs important roles within his own culture. As a result of his imprisonment over the years he has missed important ceremonies.
Ms Burgess submitted that the appellant:
... has been caught up in a clash of two different worlds. The mission where alcohol abuse has been rampant, a situation where he grew up as a small child surrounded by people drinking and being at a disadvantage of being a member of the most disadvantaged group of people in our community, that is, the Aboriginal people.
She submitted that the appellant was doing his best in the world where he has an important place within his own community but his consumption of alcohol caused many problems. Ms Burgess submitted that all of his prior offending had been due to his alcohol use and abuse and that he needed to cut himself off from his community in order to keep away from the temptation of alcohol. However, if he did that he would find himself “not speaking to every aunt, uncle, young person and old person”. They had all been affected by alcohol abuse. During his youth, as a result of his parents drinking, he was left to fend for himself. His uncle and aunt who may have taken on a parenting role were also affected by alcohol.
Ms Burgess reiterated that clearly the appellant had a problem with his addiction to alcohol. She noted that he could not turn to his extended family because “they all have the same problem”. She submitted that the appellant was trying to be a part of the community and trying to stop alcohol abuse without much success.
Ms Burgess submitted that the appellant has a young child as a result of his relationship with the victim of this offending. He has two children from his relationship with his previous partner. His former partner died as a result of alcohol abuse. His partner has a problem with alcohol and their drinking together has led them to argue frequently.
Ms Burgess submitted that the appellant finished school and that he had been able to do some work since finishing school.[19] She further submitted that the appellant acknowledged that he has a problem with alcohol and that this had affected his socialisation leading him into conflict with the law. Since he was imprisoned on remand awaiting trial he has had no form of counselling in relation to his alcohol problems. She submitted that it appeared that he had received little or no counselling on the other occasions he was imprisoned.
[19] I note there was a discrepancy in the submissions on his educational achievements. It was suggested that he may have obtained Year 12 qualifications. When sentenced in Western Australia in February 2001 the sentencing Judge noted that the appellant had been educated to Year 5 “but he has very limited literacy and numeracy skills as a result of poor attendance.”
Previous convictions
Prior to this particular offending the appellant had a history of violence against women. As mentioned, the Judge had copies of sentencing remarks for some of the prior offending.
In October 2000, when the appellant was 21 years of age, he raped a 16-year-old school student. The complainant in that case went to the aid of a friend who was being threatened by the appellant. She confronted the appellant and her friend left. A short time later, the appellant produced a knife and held it to the complainant’s neck. He then raped her number of times over a period of about 30 minutes. The Judge on that occasion described the appellant’s treatment of the complainant as “callous in the extreme, degrading and brutal. It was a sustained sexual attack”.
The pre-sentence report noted that the appellant lacked remorse. The Judge did not accept that the appellant felt remorse for what he had done to the complainant or its effects on her. However, the Judge did accept that the appellant regretted that his father had been shamed for what he had done. The Judge imposed a term of imprisonment, having allowed for a guilty plea, of 10 years.
I also note that in his sentencing remarks the Judge referred to the principles articulated in the case of R v Fernando.[20] The Judge had regard to the fact that the appellant came from a background of deprivation in which alcohol had a tragically destructive impact.
[20] (1992) 76 A Crim R 58.
In 2005, the appellant was charged and convicted of unlawfully wounding his then domestic partner. He was also charged with possessing a weapon with intent to cause injury and possessing a weapon with intent to cause fear. He was sentenced to six months imprisonment for that offending.
On 18 December 2012, the appellant had an argument with his partner. He struck her to the forehead and both arms with a rock. On 7 January 2013, the appellant pleaded guilty to one count of unlawful assault causing bodily harm with circumstances of aggravation (being his domestic partner) and one count of breach of protective bail conditions. The learned Magistrate received a “verbal pre-sentence report”. A lack of insight was again noted as whilst the appellant agreed to participate in “interventions related to alcohol misuse and anger management” he did not believe he required it.
The offending occurred in Western Australia. He was sentenced to eight months imprisonment, the sentence being suspended upon him entering into a good behaviour bond for 12 months. He was subject to that bond when he committed this offence.
Grounds of Appeal
The appellant complained that the Judge made three errors in his approach (Grounds 2, 3 and 4). He also complained that the sentence imposed was manifestly excessive both as to the head sentence and as to the non-parole period (Ground 1). I will deal with Ground 1 last.
Ground 2
The appellant complained that the Judge erred by referring to the lack of cooperation and lack of remorse by the appellant as if they were aggravating features of the case.
When sentencing the appellant the Judge said:[21]
Despite significant enquiries throughout the small Yalata community, police could not locate you for six weeks. They found you on 19 September, whereupon you refused to cooperate with them, declining to answer any questions.
[21] Sentencing Remarks of Judge Stretton delivered 23 December 2014 at p 2.
The exercise of a right to remain silent cannot of course be an aggravating feature when sentencing a prisoner.
This passage in the Judge’s remarks was part of his recitation of the facts of the case. In context, the Judge was doing no more than stating what in fact had occurred. There is nothing in the Judge’s remarks that would suggest that he considered it to be an aggravating feature.
Remorse
It was also submitted that the Judge erred in failing to take into account the prisoner’s remorse.
The Judge said that as the prisoner denied responsibility for the events there can be “no credit for either a plea of guilty or remorse”. It was submitted that the Judge was in error as the prisoner had, when interviewed for the purposes of the pre-sentence report, stated that “he could not remember the incident” however, he was “sorry for what happened”. That comment was preceded by the observation of the interviewer that the prisoner “presented as somewhat evasive, limited with his answers indicating he was either unable or unwilling to provide more detailed comments regarding the subject offence.”
It was open to the Judge to reject that comment as an expression of genuine remorse. Even if it should have been accepted it was of such little weight that it could not have made any difference to the sentence imposed.
I dismiss this ground of appeal.
Ground 3
The appellant complained that the Judge misdirected himself when finding:[22]
You had both been drinking and you and she were heard loudly arguing. You then decided to get a steak knife out of the kitchen drawer and stab Ms Windlass in the back as she sat on the couch in the lounge room.
[22] Sentencing Remarks of Judge Stretton delivered 23 December 2014 at p 1.
Further the Judge said:[23]
When police attended the house a little later in the evening, the weapon could not be found and the rest of the knives in the house, including the whole set of steak knives in the kitchen drawer had all been removed. You were the only person who had a motive to get rid of the weapon you used and any others like it.
I find proven beyond reasonable doubt, based on all the circumstantial evidence on the topic led at trial, that when the others left the house you likely returned, removed and disposed of the weapon you used and in a clumsy attempt to hinder the police removed other similar knives from the house to try and make things harder for the police.
[23] Sentencing Remarks of Judge Stretton delivered 23 December 2014 at pp 1-2.
On appeal it was submitted that there was no evidential basis to infer that the appellant had used a knife taken from the kitchen drawer when committing the offence. While little turns on that particular finding, it is relevant to the Judge’s finding as to who removed the knives from the drawer before the police attended the scene of the crime. The appellant submitted that it was not open to the Judge to find that it was the appellant who had returned to the scene to remove the knives from the drawer. The appellant also submitted that the Judge, when using the expression “you likely returned”, misapplied the standard of proof.
I will deal first with the application of the standard of proof. It is clear from the transcript of the submissions that the Judge was well aware that the standard of proof was that of “beyond reasonable doubt”. Indeed it is clear from his sentencing remarks as well. Sentencing remarks are not a written judgment. When one looks at the observations of the Judge during the course of submissions, in conjunction with the sentencing remarks, it is clear that his use of the expression “you likely returned” was a slip of the tongue. I reject the submission of the appellant on that point.
The Judge heard all of the evidence at trial. During the course of the submissions the Judge indicated to counsel for the appellant the finding he was considering. He invited submissions from counsel on the point.
There was, in my view, evidence on which it was open for the Judge to make the finding that a knife from the kitchen drawer was used and that the appellant later removed all the knives from the drawer. There was evidence at the trial that a box set of black handled knives was kept in a drawer in the kitchen. Further, there was evidence that the victim was stabbed with a knife which was “black”. There was evidence that a box of knives had been in the drawer before the stabbing and was not there after the stabbing. The evidence at the trial demonstrated that apart from the person who remained and rendered assistance, all other persons present fled the scene. The appellant had a motive to remove the knives.
The Judge considered the submissions made by Ms Burgess that other persons may have returned and taken the knives. It was of course open for the appellant, when he was on notice of the proposed finding, to have given evidence about it. At the time of the sentencing submissions, the appellant had accepted the finding of the jury. There was no obligation on the appellant to give evidence about this matter. The Judge was left only with the evidence led at trial. The Judge found that the only person with a motive to remove the knives was the appellant. On the evidence before him the Judge was entitled to draw an inference from all of the facts that it was the appellant that used a knife from the kitchen drawer and then returned to remove them.
It was submitted that in making the finding that the prisoner made a “clumsy attempt” to cover up his crime the Judge failed to take into account the principles set out in The Queen v De Simoni.[24]
[24] (1981) 147 CLR 383 at 389.
As Gibbs CJ stated:
However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

In R v Tran & Tran[25] the Court distilled the principles to be applied taking into account the fact that the common law principles of sentencing stand alongside the Criminal Law (Sentencing) Act 1988 (SA) and in particular s 10.
[25] [2011] SASCFC 153 [28]-[31].
The Court said:
The following may be accepted as established; the context and surrounding circumstances include a consideration of whether the act charged is isolated or forms part of an ongoing course of conduct; the offence for which a defendant is to be sentenced may take its colour from, and its character is affected by, the context in which it was committed; a sentencing Judge is entitled to take into account the context and the surrounding circumstances of a crime; the context and surrounding circumstances may be brought to account in considering whether to extend leniency so as to reduce what would otherwise be a proper sentence; the commission of other crimes not asked by a defendant to be taken into account cannot be used to increase what would otherwise be a proper sentence and a defendant is not to be punished for conduct which is said to be criminal unless the defendant is charged with a relevant offence and has the opportunity to defend the charge.
When uncharged acts are of a similar character to the offence for which the defendant is to be sentenced, they may have relevance to several sentencing considerations that do not amount to matters of aggravation. For example; to militate against leniency on the basis of the offence being isolated or an aberration; to consider the importance of personal deterrence in the sentencing process; to indicate the defendant’s moral culpability; to assess the defendant’s prospects of rehabilitation; to diminish the importance of a lack of prior convictions when such offending has been occurring for some length of time; and finally, as part of the defendant’s “character and antecedents” pursuant to section 10 of the Sentencing Act. These matters are relevant to sentencing as they may indicate that a defendant has had time to reflect on his offending and yet has determined to proceed with the subject offence; has engaged in the subject offending in an organised and planned manner; intends to continue with the offending; or was motivated by greed.
These considerations are all matters relevant to the assessment of personal deterrence, prospects of rehabilitation and the protection of the community. As such, they are relevant to the determination of the appropriate sentence for the offence and for the particular defendant. They are factors that may lead to the imposition of a more severe sentence than might have otherwise been imposed. It does not follow, however, that the sentence to be imposed will be increased beyond that which is proportionate to the offence for which the defendant is to be sentenced. It does not follow that the defendant is being sentenced for uncharged acts.
A proportionate sentence for the subject offence should take into account the moral culpability of the defendant, the need for personal deterrence, the defendant’s prospects for rehabilitation and the protection of the community.
Whether particular facts form part of the background to be taken into account when sentencing for an offence or require a separate charge to be laid is a question of fact and degree in each case. Offenders often attempt to “cover up” their crime. The fact that an offender has attempted to make it difficult for the authorities to solve the crime does not, without more, lead to the position that a further charge should be laid to enable the conduct to be taken into account on sentence.
The disposal of a murder weapon, an alleged rapist washing his clothes to remove DNA evidence or an accused blaming an innocent third party for the offence are examples of circumstances which would form part of the sentencing matrix not requiring a separate charge.
Provided the behaviour is sufficiently connected to the offending in question, how a prisoner behaves in the immediate aftermath of the offending can be a relevant consideration in sentencing when determining the questions of moral culpability, personal deterrence, the prospects of rehabilitation and also the protection of the community as discussed in R v Tran & Tran.[26]
[26] [2011] SASCFC 153.
Here the Judge was entitled to take into account his finding that there was a “clumsy attempt” to cover up the crime as a factor in fixing a proportionate sentence for the offending for which he was found guilty without offending the principles set out in The Queen v De Simoni.[27] Such a factor can be taken into account without a separate charge being laid.
[27] (1981) 147 CLR 383.
There is nothing in the remarks of the Judge that would indicate he did anything more than take into account, in an appropriate way, “the context and the surrounding circumstances of the crime”. The fact that it may have contributed to the fixing of the final sentence, provided it is proportionate to the offending, does not lead to the conclusion that the appellant was being sentenced for an uncharged act.
In my opinion, the approach of the Judge did not offend the principles enunciated in The Queen v De Simoni.
I dismiss this ground of appeal.
Ground 4
The appellant complained that the Judge erred in commenting upon and having regard to the appellant’s failure to participate in intervention programs contrary to the requirements of section 10(3)(c) of the Criminal Law Sentencing Act 1988 (SA) (“the Act”).
The Judge, whilst setting out the appellant’s background stated:[28]
You commenced drinking at 17, which you did periodically. When you were imprisoned for the rapes at twenty-one, the sentencing remarks show you were eligible for several courses in prison but, from your counsel’s submissions, it appears you may not have undertaken any.
[28] Sentencing Remarks of Judge Stretton delivered 23 December 2014 at p 3.
Section 10(3)(c) of the Criminal Law Sentencing Act 1988 (SA) states:
In determining the sentence for an offence, a court must not have regard to any of the following:
...
(c) the fact that the defendant-
(i) has not participated in, or has not had the opportunity to participate in, an intervention programme; or
(ii) has performed badly in, or has failed to make satisfactory progress in, such a program.
The appellant submitted that by his remarks that the appellant had not participated in an intervention programme was an error. It was suggested that the Judge had used that fact in a negative way. I reject that submission.
The Judge was doing no more than reciting what he understood to be the background of the appellant as submitted by his counsel. It could not be said that in doing so he “had regard to”, in any relevant sense, the appellant’s non-participation in any intervention programme. I reject the appellant’s contention simply on this ground.
However, Mr Petraccaro for the respondent also submitted that the expression “intervention programme” had a specific meaning for the purpose of the Act. Section 3 of the Act defines “intervention programme” as follows:
(a)     supervised treatment; or
(b)     supervised rehabilitation; or
(c)     supervised behaviour management; or
(d)     supervised access to support services; or
(e)     a combination of any one or more of the above,
designed to address behavioural problems (including problem gambling), substance abuse or mental impairment.
Mr Petraccaro referred to the second reading speech where the Attorney-General said: [29]
I will speak first about intervention programs. In appropriate cases, the Magistrates Court will arrange for a defendant to be assessed for and, if suitable, to undertake a program of intervention (sometimes called diversion). This is an intensive program of treatment or rehabilitation or behaviour management designed to help a defendant to deal with the underlying causes of his or her criminal behaviour. There are presently three programs used by the court: the Drug Court Program, the Magistrates Court Diversion Program (dealing with mental impairment) and the Violence Intervention Program.
...
... There is a strong public interest in maintaining an incentive for people who come before the courts to overcome the underlying causes of their criminal behaviour, because the programs themselves are rigorous and demanding. The bill allows a sentencing court to give credit for an offender’s participation in a program but also makes it clear that not participating in a program, or not been given the opportunity to do so, is not relevant to sentence.
[29] South Australia, Parliamentary Debates, Legislative Council, 17 February 2005, 1125-1126 (Paul Holloway).
I agree with the respondent’s submission that the concept of an “intervention programme” has a limited meaning. It is not necessary for the disposal of this appeal to determine finally what is meant by that expression. However, the Judge’s reference to “several courses in prison”, which refer to the appellant’s time in Western Australia, does not fall within the definition of an “intervention programme” for the purpose of section 10(c)(3) of the Act. I reject the appellant’s submission on this basis as well.
Ground 1
The appellant complained that the Judge imposed a sentence which was manifestly excessive, both as to the head sentence and as to the non-parole period. The main point submitted by the appellant was that the Judge failed to take into sufficient consideration the appellant’s deprived background of acute disadvantage and inter-generational alcohol abuse and violence.
The approach of an appeal court, when considering an appeal against sentence, was explained by the High Court in Markarian v The Queen.[30] Gleeson CJ, Gummow, Hayne and Callinan JJ said:[31]
As with other discretionary judgements, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[30] (2005) 228 CLR 357.
[31] Markarian v The Queen (2005) 228 [25].
I have already rejected the appellant’s contentions that the Judge made a number of “specific errors”. The failure alleged in this ground of appeal is that the Judge “failed to take into account sufficiently” a relevant factor. Such a submission of itself is not capable of enlivening the appeal court’s authority to intervene.[32] I accept that it can form part of a submission that there was a manifest error. That is, by failing to give adequate weight to the material consideration the Judge has reached a sentence which is so unreasonable or plainly unjust or outside the permissible range of sentences for the offender and the offence.
[32] R v Lutze (2014) 121 SASR 144, 154 [47].
When considering whether a sentence is manifestly excessive, this Court in R v Scarpantoni[33] has stated that an appellate court:[34]
considers a number of factors including the maximum penalty for the offence, the range of sentencing customarily observed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.
[33] [2013] SASCFC 120.
[34] R v Scarpantoni [2013] SASCFC 120 [81].
As discussed earlier in these reasons, submissions were made as to the fact that the appellant had grown up in an environment of deprivation where alcohol abuse was prevalent. I have set out the submissions of the appellant before the Judge earlier. Further, the Judge had the benefit of the earlier sentencing remarks including reference to pre-sentence reports from Western Australia.
The Judge accepted the submissions made on behalf of the appellant. He stated in his sentencing remarks:[35] “I accept the general background of disadvantage you grew up within and the types of difficulties and challenges that background provides for people in your situation.”
[35] Sentencing Remarks of Judge Stretton delivered 23 December 2014 at p 3.
The Judge noted that the maximum penalty for the offence was 19 years imprisonment. He also noted that the appellant came before the Court with “a history of violence against women”. I have earlier set out the details of that prior offending. The offending in October 2000 was very serious and included the use of a knife. The other convictions related to violent offending against the appellant’s previous domestic partners. The last offence was committed against his current partner who was also the victim of this offence. The sentencing remarks show that the Judge was involved in the process of balancing the seriousness of the offending against the personal circumstances of the appellant.
The High Court in Bugmy v The Queen[36] discussed the principles involved when sentencing a person from a deprived background. The Court stated:[37]
... The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the persons make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[36] (2013) 249 CLR 571.
[37] Bugmy v The Queen (2013) 249 CLR 571, 594-595.
The principles receive further consideration in Munda v Western Australia.[38] The majority of the Court said:[39]
The statement by Brennan J in Neal has consistently been applied in this country by intermediate appellate courts. Thus in Fernando, Wood J said:
“[I]n sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.”
In R v Fuller-Cust, Eames JA observed that, in the application of the principle stated by Brennan J, regard to an offender’s Aboriginality serves to ensure that a factor relevant to sentencing which arises from the offender’s Aboriginality is not “overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored”. Moreover, the personal disadvantages affecting an individual offender may be, because of the circumstances in which they were engendered, so deep and so broad that they serve to shed light on matters such as, for example, an offender’s recidivism.
Mitigating factors must be given appropriate weight, but they must not be allowed “to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”. It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.
[38] (2013) 249 CLR 600.
[39] Munda v Western Australia (2013) 249 CLR 600, 619 [51]-[53].
Drunkenness does not usually operate by way of excuse or to mitigate an offender’s conduct: it may assist in explaining why the offending occurred. The High Court recognised there are some Aboriginal communities where alcohol abuse and alcohol-related violence go hand in hand. Where an offender’s abuse of alcohol is a reflection of the environment in which he was raised it should be taken into account as a mitigating factor. To do so is to acknowledge the endemic presence of alcohol in some Aboriginal communities and to further acknowledge the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunities and other demoralising factors can place heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
The same sentencing principles are to be applied, of course, in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group. In imposing a sentence the courts are bound to take into account all material facts including those factors which exist by reason of an offender’s membership of an ethnic or other group. This simply recognises in the sentencing process the social disadvantage that frequently precedes the commission of a crime no matter what the ethnicity of the offender. It is a factor to be taken into account and weighed along with the other relevant factors.
The Judge was faced with a difficult decision. There was much in the appellant’s background of deprivation and alcohol abuse to excite sympathy. That had to be balanced against the need to protect the community, particularly those communities where the appellant lived and is likely to live upon his release from prison.
During the course of sentencing submissions the prosecution submitted that:
The offence before the court is serious as evidenced by the maximum penalty for that offence. The defendant’s conduct may best be characterised as an unprovoked attack on a soft target. The (victim) was the defendant’s partner, they have a child. She was in his company and was especially vulnerable.
He is not entitled to any discount on the sentence imposed, nor has he shown anything but very little contrition for his offending. In my submission any penalty imposed by the court should include a strong component of personal and general deterrence.
The prosecution except that your Honour is obliged to fix a sentence that is not too crushing for Mr Pennington to allow for the possibility of rehabilitation. However, the sentence must nevertheless fit the offending taking into account the wanton display of violence against a defenceless woman and the life threatening injuries that were caused to her. In the prosecution’s submission there is no room for leniency in this matter in the absence of any real degree of contrition and remorse from Mr Pennington.

The Judge described the offending as an “unprovoked, cowardly and vicious attack on a defenceless woman”. Later in his sentencing remarks, the Judge noted that the “jury’s verdict indicates that you were reckless, in other words, you knew that you might inflict serious harm on her but you did not care and you went ahead anyway.”
It was open for the Judge to describe the attacker as vicious. The Judge was clearly aware that the attack was vicious and intentional but that the jury had found that at the time of the stabbing the appellant was acting recklessly as to the harm he might cause. No error is shown in the approach of the Judge.
It is clear that the appellant expressed little by way of remorse for his offending which has been a consistent pattern. He has limited insight. All of his offending has been against women and in the majority of cases against his domestic partners at the time. Clearly, the protection of Aboriginal women and protection of the community were significant factors in sentencing.
The Judge took into account all the relevant factors. He undertook the necessary balancing exercise. It can be reasonably argued that the head sentence and non-parole period fixed by the Judge were towards the upper end of the range of available sentences. However, I cannot find that the sentence and non-parole period were so unreasonable or plainly unjust as to fall outside the permissible range of sentences for the appellant and this offence. I would dismiss this ground of appeal.
Conclusion
I refuse permission to appeal on Grounds 2 and 4. I dismiss Ground 3. I would grant permission to appeal on Ground 1 but would dismiss the appeal.