R v RITTER - [2016] SASCFC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RITTER
[2016] SASCFC 88
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
16 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
Appeal against sentence.
The appellant pleaded guilty to one count of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 and one count of causing harm with intent to cause harm contrary to s 24(1) of that Act.
The learned trial Judge imposed a total head sentence of six years and 11 months and fixed a non-parole period of five years imprisonment. As the appellant had pleaded guilty to the charge of assault at the first opportunity the Judge allowed the maximum 40% discount in respect of that charge. The Judge allowed a 10% discount to sentence for the very late guilty plea to the second charge.
The appellant appealed against the sentence on the grounds that both the head sentence and the non-parole period were manifestly excessive and that the Judge erred in not having or seeking materials on which a proper assessment could be made of the appellant’s prospects for rehabilitation.
The appellant sought to introduce fresh evidence in the form of a psychologist’s report and a report from an officer of the Department of Correctional Services.
Held per Parker J (Nicholson and Lovell JJ agreeing), dismissing the appeal:
1. The reports should not be received as fresh evidence. The psychologist’s report could have been obtained for use at the trial and added little to what was before the sentencing Judge. Further, the reporting psychologist received incomplete instructions relating to the appellant’s criminal history. The report from the Department for Correctional Services officer did not add anything of significance to what was before the sentencing Judge.
2. The head sentence was not manifestly excessive in light of the appellant’s significant history of domestic violence, the context of his relationship with the victim and the seriousness of the victim’s injuries.
3. There was no requirement that the two sentences be ordered to be served concurrently. They involved clearly separate criminal offences which occurred almost five weeks apart.
4. The Judge did not err in concluding that the appellant had extremely poor prospects for rehabilitation without seeking further materials. The appellant had a long criminal history, including numerous assaults for which he had received sentences of imprisonment, as well as many convictions for breaches of restraining orders and bail agreements.
Criminal Law Consolidation Act 1935 (SA) s 20(4), s 24(1); Criminal Law (Sentencing) Act 1988 s 10B(2)(a), s 20B, s 20BA, referred to.
R v Dorning (1981) 27 SASR 481; In re van Beelen (1974) 9 SASR 163; R v Smith (1987) 44 SASR 587; R v Sladic (2005) 92 SASR 36; R v Kafexholli [2012] SASFC 140; R v Wilkinson (2008) 101 SASR 21; R v Lennon (2003) 86 SASR 295, considered.

R v RITTER
[2016] SASCFC 88
Court of Criminal Appeal: Nicholson, Parker and Lovell JJ

NICHOLSON J: I agree that the appeal should be dismissed and with the reasons of Parker J.
PARKER J: This is an appeal against sentence. On 4 November 2015 the appellant pleaded guilty to one count of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 and one count of causing harm with intent to cause harm contrary to s 24(1) of that Act.
The judge indicated that the notional starting point for the sentence on the first count of assault causing harm would have been imprisonment for two and one half years. As the appellant had pleaded guilty at the first opportunity, the judge allowed the maximum discount of 40% and imposed a sentence of 18 months. The judge indicated that the starting point on the second count of causing harm with intent to cause harm was imprisonment for six years. That was reduced by 10% to imprisonment for five years and five months in recognition of what his Honour described as the very late plea of guilty. The two sentences were made cumulative resulting in a total head sentence of six years and 11 months. His Honour fixed a non-parole period of five years imprisonment.
The grounds of appeal are, first, that both the head sentence and the non‑parole period were manifestly excessive and, second, that the judge erred in not having or seeking materials on which a proper assessment could be made of the appellant’s prospects for rehabilitation.
For the reasons that follow I would dismiss the appeal.
Background
Personal circumstances
The appellant is 45 years old and has lived in Port Pirie his entire life. After leaving school during year 10 he worked for two and a half years at the Port Pirie abattoirs and again for several months when aged in his mid-20s. He has not since been employed and has received Centrelink benefits or a pension for most of his adult life.
A report that had been prepared in November 2006 by a psychologist, Mary Johnson, for sentencing purposes was provided to the judge. She reported that early in 2005 the appellant was the victim of a violent unprovoked assault which left him with facial injuries, including damage to his right eye socket. This caused blurred vision and headaches and also psychological effects.
Ms Johnson also reported that the appellant was very close to his younger half-brother prior to his death in a motor vehicle accident at Easter 2005. In 2005 the appellant’s only close friend was diagnosed with terminal cancer. The appellant spent time visiting and supporting his friend prior to his death. This also was an emotionally traumatic event.
Ms Johnson reported that the appellant has been a daily user of alcohol and cannabis. At the time she prepared her report he was drinking to cope with the death of his half-brother and his close friend.
Psychological testing undertaken by Ms Johnson showed that the appellant was suffering from depression at the upper level of the severe range as a result of the death of his half-brother and his friend. He was also suffering from severe post-traumatic stress disorder as a result of the assault.
Ms Johnson also reported that the appellant was not psychologically aware and was very confused and frightened by his deteriorating level of psychological functioning. He required antidepressant medication as a necessary adjunct to cognitive behaviour treatment for depression and post-trauma stress and also psychiatric and psychological intervention. In the opinion of Ms Johnson the appellant was likely to comply with the terms of a bond requiring supervision by an officer of the Department for Correctional Services (“DCS”). A suitable treatment regime would assist him to comply with the requirements of a bond.
Also provided to the judge were pre-sentence reports prepared in August 2006 and in January 2007 by a DCS officer. She reported that the predominant criminogenic risk factors for the appellant were impulsivity, poor anger management, grief and loss issues and alcohol and drug use.
The appellant informed the DCS officer that he had participated in pre‑vocational and rehabilitation programs in prison and would be prepared to attend further programs to address his offending behaviour and grief and loss issues. However, the officer noted in her August 2006 report that the appellant had previously been tardy in attending departmental programs and sought to rationalise his non-attendance by reference to family issues. In her January 2007 report the officer noted that the appellant had contributed during sessions dealing with grief and loss, anger management, domestic violence, violence against women and alcohol and other drugs. He had also attended at the DCS office as directed.
Criminal history
The appellant began offending at the age of 13 years. He has many prior convictions, or findings of guilt, for offences of violence. These include 14 counts of common assault or assault police, three counts of assault occasioning actual bodily harm and one charge of aggravated causing harm. Some of those offences occurred in the context of previous relationships. He has also been convicted on five occasions of failing to comply with an intervention order. Those offences involved three different women with whom he had been in relationships. He also has multiple other convictions for behavioural offences, production and possession of cannabis, traffic offences, including several counts of drink-driving, property damage on 14 occasions and a break and enter. He has been convicted, or found guilty, on 18 occasions of failing to comply with a bail agreement or breach of a bond.
The reports about the appellant prepared by Ms Johnson and a DCS officer in late 2006 and early 2007 were prepared for use in proceedings that came before the Magistrates Court at Port Pirie in January 2007. The appellant was convicted at that time of offences of common assault, property damage, failing to comply with a bail agreement and three counts of failing to comply with a restraining order. He was sentenced to imprisonment for six months but that sentence was suspended upon his entry into a bond to be of good behaviour for 18 months. A breach of an earlier bond was also dealt with at that time by further suspending the sentence of four months imprisonment that had been suspended in 2005 upon entry into that earlier bond.
In 2010 the appellant was sentenced by the District Court to imprisonment for two years for an aggravated offence of causing harm against a police officer. The sentence of six months imprisonment that had been suspended in 2007 was ordered to be served cumulatively with the new sentence of two years imprisonment.
Relationship with the victim
At the time of the offending the appellant and the victim had been in a relationship for approximately two years. His behaviour towards her was violent and controlling.
About one month into the relationship the appellant began verbally abusing the victim. This progressed to physical abuse occurring about twice each week. By the last year of the relationship the frequency of assaults had escalated to the point where the appellant was assaulting the victim on a daily basis. The assaults included punching, slapping, kicking, throwing items and spitting.
When the victim was threatened or attacked by the appellant she would try to leave their flat, often running into nearby streets and parks and attempting to hide. The appellant would frequently chase her or track her down in order to continue his abuse.
The appellant monitored the victim’s movements and rarely let her leave the house without him. He also controlled her finances, regularly forcing her to withdraw money from her account for his benefit, including so that he could buy drugs and alcohol.
The appellant regularly threatened that if the victim reported any abuse to the police or left the relationship he would harm her and her children. She was too frightened to leave or to report the abuse to police, friends and family.
The charges and guilty pleas
In light of concerns expressed by the Court during submissions as to the 40% reduction of sentence on count one on account of the timing of the appellant’s guilty plea (see paragraph 29 below) it is necessary to refer in some detail to the various offences that had been alleged by the police and the manner in which the two guilty pleas came about.
On 22 April 2014 the appellant was taken into custody by police for assaulting the victim. The following day, on 23 April 2014, an information was laid in the Port Pirie Magistrates Court charging the appellant with one count of aggravated assault causing harm. The Magistrates Court file was MCPIR-14-611 (“Matter 1”). The charge related to the assault on 22 April 2014. The apprehension report alleged that the victim had been punched to the face. On 23 April 2014 the appellant was released on bail.
On 28 May 2014 the appellant was again taken into custody by police for a subsequent assault on the victim. He did not seek bail. That day an information was laid in the Port Pirie Magistrates Court charging two counts of aggravated causing harm with intent in relation to an assault on the victim between 22 and 25 May 2014. The Magistrates Court file was MCPIR-14-842 (“Matter 2”).
On 12 November 2014 a committal hearing was conducted in the Port Pirie Magistrates Court relating to Matter 2. The appellant entered not guilty pleas in relation to the two counts of causing harm with intent but was committed to trial in the District Court on both counts. Bail was refused. The appellant has remained in custody since that time.
On 3 February 2015 a fresh information was laid in the District Court (“the First DC Information”) which had the practical effect of joining Matters 1 and 2. The First DC Information charged two counts. The first count of causing harm with intent related to the alleged assault on 22 April 2014 and covered the conduct alleged in Matter 1. The second count was an allegation of causing serious harm with intent relating to conduct between 9 May 2014 and 28 May 2014. In effect that count covered the conduct alleged in the two counts that had been comprised in Matter 2. On his arraignment in the District Court on 3 February 2015 the appellant entered pleas of not guilty to both counts in the First DC Information.
Notwithstanding the laying of the First DC Information, Matter 1 remained on foot in the Magistrates Court until it was dismissed for want of prosecution on 12 June 2015.
On 4 November 2015, following further investigations and the obtaining of several additional witness statements, the Director of Public Prosecutions laid a second information in the District Court (“the Second DC Information”). The Director was no longer proceeding with what had been count two in the First DC Information. What had been count one in the First DC Information remained on foot but was now preceded by three new counts. The four counts in the Second DC Information were now:
1)assault causing harm on 9 January 2013;
2)assault causing harm between 1 March 2014 and 31 March 2014;
3)assault causing harm on 19 March 2014; and
4)causing harm with intent to cause harm on 22 April 2014 (originally Matter 1 in the Magistrates Court and later count one in the First DC Information).
On 4 November 2015 the Director and the appellant agreed that he would plead guilty to counts three and four in the Second DC Information and the Director would not proceed with counts one and two. Later that day the appellant entered the agreed guilty pleas to counts three and four (which now became counts one and two).
Sentencing submissions were made on 6 November 2015. The allegations upon which the previous counts one and two had been founded were referred to as uncharged acts, together with other uncharged acts referred to in witness statements, so as to place the offending in its proper context.
An alleged assault on 10 May 2014 (that was the basis for count two in the First DC Information and before that the two counts in Matter 2 in the Magistrates Court) was not referred to by the prosecution as an uncharged act as the victim had no recollection of the matter due to her head injuries.
The appellant was sentenced on 23 November 2015.
The incidents admitted by the appellant in his guilty plea
The incident on 19 March 2014 that led to the first count of assault causing harm occurred while the appellant and the victim were at home. He began yelling abuse at her. She feared that she would be hit so she ran from their flat into nearby streets. The appellant caught up with her and yelled at her to return home. Without warning the appellant punched the victim in the face, cutting her right upper lip and causing her to fall to the ground. There was considerable bleeding from the wound. He left her lying on the ground. Two women witnessed the attack. They were apparently frightened and shocked.
The victim did not seek medical attention immediately because of prior threats of reprisal by the appellant against her and her children if she reported his assaults upon her. The nurse who treated her when she attended hospital several days later described the wound as a gaping and jagged laceration. The nurse also noted that the victim appeared frightened and anxious and was worried that the appellant would visit her at the hospital.
The incident on 22 April 2014 that resulted in the second count of causing harm with intent to cause harm also occurred while the appellant and the victim were at home. She was lying down with a headache, having been hit a number of times by the appellant in the preceding days. The appellant verbally abused her for lying around. She got up and told him that she was going to visit her daughter. He told her that she was not to leave home unless he went with her. He then hit her around the head with a pillow and punched her to the left side of her mouth.
The resultant injury was considerably more serious than that the victim had suffered in the assault on 19 March 2014. She was airlifted from the Port Pirie Hospital to the Royal Adelaide Hospital for plastic surgery. A witness statement prepared by Dr Nicholas Smith indicated that:
[The victim] sustained two deep lip lacerations that required surgical repair in an operating theatre under a general anaesthetic. Without surgery her injury could have resulted in complications such as infection, and deep scarring/contractures causing poor mouth opening or other functional defects.
As a result of the two incidents the victim has scars on the left and right sides of her mouth.
The uncharged acts
On 9 January 2013 the victim was taking a shower at their flat. The appellant opened the bathroom door with such force that it almost came off of its hinges. The appellant yelled at the victim. He then punched her with his right fist into her right chest and shoulder knocking her backwards into the corner of the shower. He stood in the shower screaming at the victim and punched her repeatedly on her back and around her rib cage. The victim sat at the bottom of the shower for five minutes afraid that if she got up the appellant would attack her again.
Sometime in March 2014 the victim noticed the appellant was in an angry mood. She decided to leave the flat to avoid being assaulted. She told him that she was going for a walk. She went to a nearby playground where she sat for about 20 minutes before the appellant came up to her. He verbally abused her and punched her left cheek with his right hand thereby knocking her over. He then repeatedly punched her as she lay on the ground. She managed to get up and was punched in the right top part of her head knocking her over again. The appellant then walked off leaving her lying on the ground. When police arrived she told them she was alright and that nothing had happened because she was afraid that the appellant was watching her. She suffered soreness and bruising to her back, head and face that lasted for several weeks.
The statements made by the victim to the police refer to several other uncharged acts of a similar character to those described in the two preceding paragraphs.
Sentencing remarks
After referring to the history of the appellant’s relationship with the victim and the uncharged acts the judge set out in some detail the circumstances of the two counts to which the appellant had pleaded guilty. His Honour also referred to the appellant’s extensive criminal record and the fact that since his teenage years he had displayed a propensity for violent conduct which had not diminished over the years. The fact that he had been convicted on 18 occasions for various forms of assault and also had convictions for failing to comply with restraining orders confirmed the appellant’s tendency for violence against women.

The judge noted that after the appellant had been arrested and taken into custody on 28 May 2014 an intervention order had been issued that prevented him from contacting the victim in any way. Nevertheless, in August 2014 while the victim was in hospital he had sent a letter to her from prison using an alias. He asked the victim to “do the right thing by [him and his family]” and asked her to write to him and send her telephone number. He also asked the victim to contact his mother if she wished to contact him directly. In October 2014 the appellant had sent the victim another letter which had been redirected to her daughter. He said that he was thinking of her every day, could not wait to catch up with her again and wanted her to write to him. The judge stated that, at least at the time they were written, these letters revealed the appellant’s complete selfishness and lack of insight into the enormity of his brutality upon the victim.
The judge referred to the fact that counsel for the appellant had tendered the 2006 and 2007 pre-sentence reports and the psychological report prepared in 2006, ie that of Ms Johnson. His Honour referred in some detail to the content of the psychological report and noted that as a result of the assault in 2005 the appellant was angry and restless. His sense of vigilance was awakened and he was unable to rest and relax effectively. Thus, he became easily threatened and would respond instinctively. He was highly anxious, withdrawn and isolated. He also suffered from post-traumatic stress disorder and depression following the death of his half-brother in 2005.
The judge noted that the appellant had confirmed to the author of the pre-sentence report in 2006 that his impulsivity was a result of his propensity to react without thinking.
The judge also referred to the fact that the 2006 pre-sentence report had indicated that the appellant had attended various courses under the aegis of the DCS including anger management, domestic violence and violence against women. He had participated well in the group sessions and was able to demonstrate that he understood the concept of cause and effect by speaking about how his behaviour had affected himself, his family and others. Based on the 2006 reports the appellant had received a suspended sentence upon conviction for a range of offences, including assault and three counts of failing to comply with a restraining order. At that time an application to revoke an earlier suspended sentence was also excused.
The judge noted that despite all of these matters the appellant had not rehabilitated his violent tendencies. Against that, his counsel had submitted that the same stressors that had existed in 2006 and 2007 had still existed at the time of the current offences. Those stressors included the appellant’s drug and alcohol issues.
While his Honour had been sceptical that the appellant was genuinely sorry for his violent conduct towards the victim and his general treatment of her, he accepted that the appellant did feel a sense of remorse and contrition.
The judge rejected the submission by counsel that the period of almost 18 months that the appellant had been in custody was a sufficient deterrent and this period was a sufficient non-parole period or alternatively the sentence of imprisonment should be suspended. The judge stated that a strong deterrent sentence was necessary to demonstrate to perpetrators of violence against women that such behaviour will not be tolerated by the courts. The appellant’s violent disposition also called for specific deterrence.
The appellant was a danger to women with whom he became involved in relationships. The judge considered that his prospects of rehabilitation were extremely poor and that was to be reflected in the fixing of the non-parole period. That period, no less than the head sentence, must reflect issues of deterrence, retribution and punishment. His Honour then imposed the sentences referred to above and stated that as both offences were quite separate and distinct episodes of violence the sentences were to be served cumulatively resulting in a total sentence of six years and 11 months imprisonment. The appropriate non-parole period was five years imprisonment.
Fresh evidence
Counsel submitted that fresh evidence should be received on the appeal. The proposed evidence comprised a report from a psychologist, Richard Balfour, prepared on 11 April 2016 and a report from an officer of the Department of Correctional Services dated 12 April 2016. The latter was in the form of a pre‑sentence report albeit that it was prepared some considerable time after sentencing.
Counsel for the appellant submitted that the receipt of the fresh evidence would be consistent with the three criteria set out in R v Dorning.[1] Those criteria are, first, that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Secondly, the evidence must be such that it would probably have an important influence on the outcome. Thirdly, the evidence must be apparently credible.
[1] (1981) 27 SASR 481 at 485-486.
Applications to lead fresh evidence are never lightly granted.[2] While an appellate court will not generally admit fresh evidence of events which have occurred after sentence was imposed, such evidence may be admitted where it sheds new light on material that was already before the sentencing judge.[3] However, there is an important distinction between evidence that sheds new light on material that was before the sentencing judge and evidence which merely updates what was known to the sentencing court.[4]
[2]    In re van Beelen (1974) 9 SASR 163 at 188.
[3]    R v Smith (1987) 44 SASR 587.
[4]    R v Sladic (2005) 92 SASR 36 at [44]-[46]; R v Kafexholli [2012] SASCFC 140.
Counsel for the appellant submitted that the report provided by Mr Balfour and the new pre-sentence report prepared by the DCS contained more detailed and further information on the appellant’s state of health and the cause of his current and past offending.
Mr Balfour had expressed the view that with appropriate rehabilitation there was considerable scope for the appellant to overcome the psychological problems that fuel his offending behaviour. That was particularly so given the new information that his motivation to participate in drug and alcohol rehabilitation was improving and that the drug and alcohol problems represented a maladaptive coping strategy for his mental health issues. Optimal psychological and psychiatric treatment would enable the appellant to develop adaptive alternative coping strategies.
Mr Balfour had reported, for the first time, that the appellant had an antisocial personality disorder. He also provided detailed recommendations as to how the appellant may best be rehabilitated. This material would provide evidence to enable the Court to assess properly his prospects of rehabilitation having regard to his particular mental health problems and his unique treatment requirements. The material could also assist the Court to accurately assess where his conduct should be placed on the scale of seriousness. The new evidence was compelling and substantial and highly probative of issues relevant to sentence. It was therefore in the interests of justice to consider this fresh evidence in the appeal.
For the reasons that follow I do not consider that Mr Balfour’s report should be received as fresh evidence.
The judge had pointed out at the commencement of the sentencing submissions that the reports from 2006 and 2007 were now quite old. Counsel for the appellant responded that the reports were helpful as they set out the background to the appellant’s conduct. On appeal, counsel informed the Court that it had been thought that due to the substantial period that the appellant had spent in custody prior to sentencing there was a genuine chance of him being released immediately. Thus, it was decided not to seek fresh reports.
That information indicates that the first of the Dorning criteria is not satisfied. Despite the age of the 2006 and 2007 reports being specifically raised by the judge, a forensic decision was made not to seek fresh reports.
I also find that Mr Balfour’s report adds little to what was before the sentencing judge other than to provide more detailed recommendations for treatment and support and the fresh diagnosis of antisocial personality disorder. I do not consider that the different or additional diagnosis changes the substance of the information that was before the judge. His Honour sentenced the appellant on the basis that he suffered from depression, anxiety and post-traumatic stress disorder. In other words, he knew that the appellant had been diagnosed with significant psychological problems. There is nothing in Mr Balfour’s report to suggest that the precise clinical characterisation of the psychological problems should affect sentencing.
Mr Balfour’s report also gives rise to an issue under the third of the Dorning criteria. During submissions the Court expressed concern that Mr Balfour had apparently not been fully informed of the appellant’s substantial history of breaches of parole and community based orders nor provided with the reports prepared in 2006 and 2007. If so, the report may lack a proper basis and should not be received as evidence, or alternatively, its weight may be diminished.
Counsel responded to the Court’s concerns by pointing out that Mr Balfour had been provided with a copy of the appellant’s criminal history. This records his breaches of bond or bail arrangements but does not refer to his parole breaches.
The appellant did inform Mr Balfour that he had been breached for failing to attend appointments and recording positive drug tests while subject to community corrections orders. He also told Mr Balfour that he had successfully completed parole but had also been reimprisoned for breaches of parole. His assertion that he had successfully completed parole could only be consistent with the DCS report that he had breached each of his three parole orders if, following a breach, he had been released again and then successfully completed parole.
I do not consider it necessary to clarify that point. I would not receive Mr Balfour’s report as fresh evidence as it does not satisfy the first and second of the Dorning criteria. Even if the report were to be received, the incomplete instructions provided to Mr Balfour must diminish the reliance that may be placed upon it.
The DCS report dated 12 April 2016 provides more information than that previously available about the appellant’s history of breaches of parole and community based orders. It also gives details of his past and present participation in a range of remedial programs. While his attendance at those programs had been intermittent, when he attended, he did properly engage. In essence, the DCS report does not add anything of significance to what was before the judge.
The DCS report also indicates that the appellant is likely to be assessed as suitable for participation in the Violence Prevention Program and the Domestic and Family Violence Program. Based on his current release date, he is likely to be considered for those programs in 2018/2019. The author of the report noted that these dates may need to be adjusted depending on the outcome of this appeal.
During the course of submissions counsel for the appellant made an oral application for permission to provide a supplementary report from Mr Balfour in light of the concerns expressed by the Court about the adequacy of the information that had been provided to him. After a brief adjournment, the Court refused that application. We now provide reasons.
The proposed further report from Mr Balfour could have been obtained with reasonable diligence for use by the Sentencing Judge. More importantly, the Court was not satisfied that the supplementation of Mr Balfour’s report would have an important influence on the outcome for the reasons already given as to the utility of and weight to be given to his initial report even if received.
The appellant’s submissions
The appellant contended that both the head sentence and the non-parole period are unreasonable and manifestly excessive. There was said to be a disproportion between the respective starting points for the two offences and also a disproportion between the head sentence and the non-parole period. Insufficient time was left for the rehabilitation of the appellant and that gave little hope for his future.
Counsel contended that, while community concern about domestic violence must be recognised, in the particular circumstances, the total penalty was simply too harsh. Too great a weight had been attached to considerations of general and personal deterrence and insufficient weight had been given to the pressing need for rehabilitation of the appellant and also his personal circumstances.
It was also contended that the judge had wrongly used the non-parole period as the mechanism to protect the community, particularly women, without the requirements for the application of s 20B of the Criminal Law (Sentencing) Act 1988 having being met. In effect, the judge had sentenced as if a finding had been made under that provision that he was a serious repeat offender. The judge thereby imposed a particularly severe sentence in order to protect the community but without making the required declaration under s 20B. In that respect, his Honour’s sentencing discretion had miscarried and that error of sentencing principle had infected the whole sentence.
It was further submitted that the judge had no current material on which to base his finding that the appellant’s prospects of rehabilitation were bleak and extremely poor. In the absence of up-to-date information about the appellant, proper consideration could not be given by the judge to the type of assistance required by the appellant and whether such services and treatment could be accessed while he was in custody or after his return to the community. The court should have made enquiry about these matters, or at least had regard to them, prior to imposing sentence.
The appellant had told the author of the 2006 pre-sentence report that he had not sought counselling to deal with his grief and loss and that he had been experiencing depression and sadness. The report had indicated that he would benefit from addressing his alcohol and other drug use, his poor impulse control and anger management issues and the effect his behaviour had on others. In 2006 the appellant was willing to attend programs run by the DCS or in the community and would benefit from them.
The pre-sentence report prepared in 2007 had indicated that the appellant needed to address his grief and loss issues while continuing to participate in appropriate intervention and rehabilitation programs.
Counsel also referred to the psychological report prepared by Ms Johnson in 2006. The appellant required antidepressant medication and as an adjunct to co-cognitive behavioural treatment for depression and post-trauma stress and psychiatric and psychological intervention. He would benefit from a treatment regime which addresses post-traumatic stress disorder and depression. She had indicated that the appellant had a pervasive pattern of post-trauma anxiety, grief reaction and depression. He was exceedingly emotionally fragile and psychologically vulnerable. His offending occurred while he was in a highly emotional and volatile state. He had major depression and post-traumatic stress disorder that were within the severe range. He was not psychologically aware and was very confused and frightened by his deteriorating level of psychological functioning. People in that situation lash out angrily when confronted by a perceived threat or danger.
Against this background counsel submitted that the report prepared by Mr Balfour which she sought to have admitted as fresh evidence indicated that the appellant had never received optimal rehabilitation for his mental health problems and primary criminogenic risk factors. He had also never had adequate treatment for his drug and alcohol abuse problems and nor had he been treated by a forensic psychologist experienced with antisocial personality disorder and drug and alcohol abuse problems. The court had not previously been aware of the diagnosis of antisocial personality disorder that may go some way towards explaining his conduct. Contrary to the view expressed by the judge that the appellant’s prospects of rehabilitation are extremely poor, counsel submitted that this material indicated that the appellant was not a hopeless case. More work was necessary to complete his rehabilitation and he was willing to undertake that work. There was no reason to think that with appropriate assistance and a lengthy period on parole his mental health would not improve. The quickest way for him to access the necessary services was by release on parole.
The 2016 DCS report indicated that he would most likely be considered for inclusion in rehabilitation programs in 2018/2019. The fact that the appellant would be in custody for several years before he could access rehabilitation services should have been taken into account by the judge in fixing the non‑parole period.
Counsel submitted that because the complete rehabilitation of the appellant was possible, the sentence imposed was particularly harsh, particularly in view of the lack of appropriate treatment in the past and his willingness to avail himself of that treatment. For those reasons it was submitted that the Court should resentence the appellant having regard to the new material.
Consideration
The sentences
In R v Wilkinson Gray J (with Sulan J agreeing specifically and White J agreeing generally) observed that the courts have long recognised that personal and general deterrence have a heightened significance when sentencing for crimes of domestic violence.[5] Gray J went on to state that:[6]
Domestic violence is predominantly directed by men toward women. The community expects the law to protect women, to protect the weak from the strong, and to protect the vulnerable from the oppressor. These are factors that have led the courts to treat crimes involving domestic violence as grave crimes.
[5] (2008) 101 SASR 21 at [28].
[6] Ibid at [29].
The observations made by Gray J in R v Wilkinson followed those made by Doyle CJ in R v Lennon (with Prior and Vanstone JJ agreeing) that:[7]
The court has said consistently that it must do what it can to protect women from violence by men. This applies just as much to violence within a domestic relationship as it does to violence in other situations. In cases like this the community expects, and the protection of women requires, that the court should impose a sentence that is likely to deter the individual offender and to deter other potential offenders. The fact that the violence occurs on the spur of the moment is a relevant factor, but this is often true in the case of domestic violence. The impulsive nature of such offences is offset by the fact that, as here, there is a pattern of violence within the particular relationship, or on the part of the particular offender.
[7] (2003) 86 SASR 295 at [12].
The judge observed that the physical, emotional and financial abuse in this case was as bad a history of domestic violence as he had ever seen. Immediately following that observation the judge noted that the appellant could not be punished for criminal conduct with which he had not been charged. However, the history of uncharged violent conduct placed the two charged offences in their proper context. Those two offences had been committed against a background of similar instances of violence and revealed that they were not isolated acts of aggression.
The observations made by the judge about the gravity of the appellant’s conduct were entirely consistent with the admitted facts and also properly reflected the seriousness with which this court has viewed acts of domestic violence, particularly where those acts occur in the context of an abusive relationship. The victim had been subject to consistent physical, financial and emotional abuse and threats to harm her and her children if she were to seek assistance. It is also significant that the second offence occurred only two weeks after the victim had sustained a similar, but less serious, injury to her mouth.

When the appellant’s conduct is considered in the light of the principles consistently stated by this Court in relation to offences of domestic violence, the significance of the injuries inflicted on the victim, the context of the relationship and the appellant’s history of violence, and in particular domestic violence, the starting point for the head sentences was not manifestly excessive. The head sentences appropriately reflected the gravity of the conduct, the abusive nature of the relationship and the appellant’s significant criminal history of violence.
I have referred in some detail at paragraphs 22 to 32 the history of the two counts to which the appellant ultimately entered a plea of guilty. I have done so because the Court was concerned to ensure that the reduction in sentence under s 10B of the Criminal Law (Sentencing) Act correctly reflected the timing of his plea of guilty to count one.
The sentence imposed on count one was reduced by 40%, being the maximum allowed under s 10B(2)(a) on the basis that the appellant had pleaded guilty immediately after that count was laid in the Second DC Information on 4 November 2015. That count related to the assault on 19 March 2014. It is apparent from the history that I have set out at paragraphs 22 to 32 that the appellant was not charged with that assault until the laying of the second DC Information on 4 November 2015. Thus, the judge was entitled to find that he had pleaded guilty at the earliest opportunity and to reduce the sentence by up to 40% under s 10B(2)(a). Nevertheless, given the history of the various charges that I have described, the judge could properly have granted a discount of significantly less than 40%. No issue arose in relation to the 10% reduction in sentence on count 2.
I reject the submission that the two sentences should have been ordered to be served concurrently. The two counts involved clearly separate incursions into criminal conduct. The offences occurred almost five weeks apart and, most significantly, the second assault occurred after the victim had suffered and had been treated for the earlier serious injury to her mouth.
I also consider that there is no basis for the contention that the judge had sentenced the appellant under s 20BA of the Criminal Law (Sentencing) Act as a serious repeat offender without having made a declaration under s 20B. The judge properly had regard to the matters to which I have referred in paragraph 41.
The non-parole period
In R v Stewart King CJ stated that the first consideration in fixing a non‑parole period is “what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventative purposes of punishment?”.[8]
[8] (1984) 35 SASR 477 at 477.
In R v Creed King CJ held (with Cox and Olsson JJ agreeing) that:[9]
In fixing a non-parole period, as in fixing a head sentence, a judge has to bear in mind the purposes for which sentences are imposed. The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard to both the offence and the offender, and it must reflect the community’s sense of justice, what in some of the cases is called “the moral sense of the community”. For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.
… The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventative purposes of punishment. The preventative purpose of punishment requires that a serious offender be deprived of the opportunity of posing any further threat to the public for a period of time which the gravity of his conduct justifies.
[9] (1988) 37 SASR 566 at 568.
In R v F, AB Kourakis J (as he then was) held (with Sulan and Vanstone JJ agreeing):[10]
The very proposition that the non-parole period must, “no less than the head sentence”, reflect the need for punishment, deterrence and prevention necessarily entails a proportionate relationship between the non-parole period and the head sentence. Considerations of deterrence, prevention and punishment will militate towards a relatively higher non-parole period. The legislative policy of promoting rehabilitation through a supervised release into the community will work to lower the non-parole period. It is not surprising then that sentencing judges and appeal courts often consider the proper proportion the non-parole should bear to the head sentence by reference to the nature of the particular offence and in terms of whether the offender’s prospects of rehabilitation are significantly better or worse than the generality of offending of that type. It is the balancing of these factors which will determine the “appropriate relationship to the head sentence”.
[10] [2011] SASCFC 73 at [31].
The non-parole period of five years equated to approximately 72% of the effective head sentence of six years and 11 months imprisonment. While the non‑parole period when expressed as a proportion of the effective head sentence tended towards the higher end of the scale, for the reasons that follow, I do not consider that the non-parole period was manifestly excessive.
In this case the considerations of deterrence, prevention and punishment referred to by Kourakis J in R v F, AB militated towards a relatively higher non‑parole period. The nature of the two offences, and the context in which they occurred, also indicated a need for a relatively higher non-parole period.
Justice Kourakis also indicated in R v F, AB that the legislative policy of promoting rehabilitation through a supervised release will work to lower the non‑parole period. The appellant has also placed considerable emphasis on the submission that the judge wrongly assessed his prospects for rehabilitation as being extremely poor when fixing the non-parole period.
I do not consider that the judge erred in concluding that the appellant had extremely poor prospects for rehabilitation. He has a long criminal history that includes 18 convictions for assaults of various types. Sentences of imprisonment had been imposed for many of those assaults. A number of those assaults had involved domestic violence. He also had many convictions for breach of restraining orders, failure to comply with bail agreements and breaches of bonds. While the appellant had previously been extended some leniency by the courts in relation to his offences of violence and notwithstanding his participation in various programs conducted by the DCS that were directed specifically at anger management, domestic violence and violence against women he had continued to commit such offences.
While the psychological and DCS reports from 2006 and 2007 had proposed programs to address the appellant’s violent conduct there was nothing before the judge to indicate that he had actively pursued such treatment.
While I share the sentencing judge’s pessimism about the appellant’s prospects for rehabilitation, prior to his release from prison he is likely to have the opportunity to attend a Violence Prevention Program and a Domestic and Family Violence Program. If he is released on parole at the earliest available date he will then serve one year and eleven months under supervision. That period may enable his further participation in appropriate programs and allow him the opportunity to benefit from supervision.
Given the circumstances of the two offences, the context in which they occurred, the appellant’s long history of violence and in particular domestic violence, his poor history of compliance with orders and limited rehabilitation prospects, I consider that the non-parole period bore an appropriate relationship to the head sentence and was not manifestly excessive.
Conclusion
Neither the head sentence nor the non-parole period were manifestly excessive. The judge did not err in concluding that the appellant had poor prospects for rehabilitation without seeking further materials. I would refuse permission to receive fresh evidence on the appeal. I would dismiss the appeal.
LOVELL J: I agree that the appeal should be dismissed and with the reasons of Parker J.