R v Saunders - [2017] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SAUNDERS
[2017] SASCFC 86
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Hinton)
27 July 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence for one count of property damage, one count of breaching bail and one count of contravening a term of an intervention order.
The judge imposed a single sentence of imprisonment for eight months and 22 days fixed from a notional starting point of 18 months after a discount of 40 per cent for the pleas of guilty and a further reduction for time spent in custody. In November 2014 the appellant was sentenced to two months imprisonment for the offence of threatening life, which was suspended upon him entering into a bond for three years. By this offending the appellant breached that bond. The sentencing judge estreated the suspended sentence and ordered that it be served cumulative upon the sentence of eight months and 22 days. This resulted in a total sentence of 10 months and 22 days.
The appellant argued that in all the circumstances the sentence is manifestly excessive. No complaint was made about the sentencing judge estreating the bond and invoking the suspended sentence of two months imprisonment.
Held: Appeal dismissed (at [29], [30] and [47]).
1. This is a substantial sentence given the objective facts of the offending. However, the issue is whether it is outside the permissible range of sentences applicable to this offending and this offender. It is not (at [23] and [24]).
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Family Law Act 1975 (Cth), referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; Pearce v The Queen (1998) 194 CLR 610; R v Wilkinson (2008) 101 SASR 21; R v Symonds [1999] SASC 217; R v McMutrie (2002) 83 SASR 261; R v Edigarov (2001) 125 A Crim R 551; Parker v The Queen (unreported, Tas CCA, Underwood J, 21 July 1994); R v Hamid (2006) 164 A Crim R 179; R v Parisi (2003) 86 SASR 183; The Queen v Sewell and Walsh (1981) 29 SASR 12, discussed.

R v SAUNDERS
[2017] SASCFC 86
Court of Criminal Appeal: Peek, Stanley and Hinton JJ
PEEK J. I would dismiss the appeal. I agree with the reasons of both Stanley J and Hinton J.
STANLEY J.
Introduction

This is an appeal against sentence.
The appellant was sentenced in the District Court, after pleas of guilty, for one count of property damage, one count of breaching bail and one count of contravening a term of an intervention order committed on 18 October 2016. The judge imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) for these offences. The judge sentenced the appellant to imprisonment for eight months and 22 days. This sentence was fixed from a notional starting point of 18 months after a discount of 40 per cent for the pleas of guilty, and a further reduction of two months and two days for time spent in custody.
In November 2014 the appellant was sentenced to two months imprisonment for the offence of threatening life. That sentence was suspended upon him entering into a bond to be of good behaviour for a period of three years. By this offending the appellant breached that bond. The sentencing judge estreated the suspended sentence and ordered that the estreated two-month sentence be served cumulative upon the sentence of eight months and 22 days. This resulted in a total sentence of 10 months and 22 days imprisonment.
The appellant appeals on the sole ground that the sentence is manifestly excessive.
In order to understand the basis of the appeal ground it is necessary to say something about the background to the sentencing.
Background
As I have said, the appellant was sentenced to two months imprisonment in November 2014. That sentence was suspended upon his entry into a bond to be of good behaviour for three years.
Between 7 May 2015 and 2 September 2015 the appellant committed the offences of disorderly behaviour, hinder police, trespassing and contravene the term of an intervention order. These offences breached the bond entered into by the appellant in November 2014. An application for enforcement of a breached bond pursuant to s 57 of the Sentencing Act was filed in the District Court. On 27 June 2016 a District Court Judge entered a conviction with no further penalty for the fresh offending and found the breach of bond proved. No further penalty was imposed on the application for enforcement of a breached bond.
On 18 October 2016 the appellant committed the offences the subject of this appeal.
On 24 July 2016 the appellant was charged with assault. That matter was not before the sentencing judge. However, as a result of that charge, the appellant entered into a bail agreement which included conditions that he not be within 50 metres of Yvonne Rose Browne, that he would not be within 50 metres of any place where Yvonne Rose Browne resided, worked or attended from time to time. On the same day the appellant was also issued with an interim intervention order which included a term that he not contact or communicate with Yvonne Rose Browne either directly or indirectly in any way except with respect to contact and access to children pursuant to any order or direction of the Family Court or other courts exercising jurisdiction of the Family Law Act 1975 (Cth).
Circumstances of the offending
At about 2:15 a.m. on 18 October 2016 the appellant attended at Ms Browne’s residence at West Croydon. He knocked on her bedroom window and called her name. When she failed to respond, he smashed the window by punching it. Police were called and located the appellant next to the front fence of the residence with a bleeding right hand.
The appellant was charged with property damage for the broken window and breach of bail and contravention of a term of an intervention order in relation to the bail agreement entered into on 24 July 2016 and the interim intervention order made the same day which prohibited him from approaching or contacting Ms Browne.
Personal circumstances of the appellant
At the time he was sentenced the appellant was 43 years old and single.
As a small child both of his parents died sudden deaths within a short time of each other. The appellant was raised by an older sister. He attended the Ceduna Area School, completing Year 10.
He has two children aged 10 and 17 who live with their mother in Ceduna.
The appellant has a poor employment history, mostly confined to casual work including bricklaying. He has a long criminal history. Much of that offending is related to his abuse of alcohol. Relevantly, he has numerous convictions for damaging property, a number of convictions for breaching bail and two prior convictions for breaching an intervention order, the most recent in 2016.
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[1] where Doyle CJ said:[2]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, 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 (1936) 55 CLR 499 at 504-505, 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".
[1] [2009] SASC 346, (2009) 266 LSJS 283.
[2] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[3] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,[4] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[3] (1936) 55 CLR 499.
[4] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
Manifest excess?
The appellant submits that in all the circumstances the sentence imposed was manifestly excessive.
In The Queen v Morse[5] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[6]
[5] (1979) 23 SASR 98.
[6] (1979) 23 SASR 98 at 99.
To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge. In Hili v The Queen[7] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[8]
… appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[Citations omitted].
[7] [2010] HCA 45, (2010) 242 CLR 520.
[8] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538 – 539.
Consideration
The maximum penalty for the offence of property damage is a term of imprisonment of 10 years. The maximum penalty for a breach of bail is a term of imprisonment of two years or a $10,000 fine. The maximum penalty for contravening a term of an intervention order is a term of imprisonment of two years.
On appeal there is no complaint made about the sentencing judge estreating the bond and invoking the suspended sentence of two months imprisonment. The appellant’s complaint is that the starting point of 18 months and the consequent end result after discount for the guilty pleas and time in custody is manifestly excessive having regard to the lack of serious consequences of the offending, the appellant’s intoxication at the time, the fact that the appellant waited for the police to attend and his subsequent cooperation.
It can be accepted that this is a substantial sentence given the objective facts of the offending. However, the issue is not whether the sentence imposed is one I would have imposed but whether it is outside the permissible range of sentences applicable to this offending and this offender.
In my view it is not.
There is no complaint about the appropriateness of the judge utilising s 18A. All three offences arose out of the same set of circumstances. It is appropriate that the sentence reflect a degree of concurrency, particularly with respect to the sentencing for the offences of breach of bail and breach of an intervention order. There is no complaint of double punishment in the Pearce v The Queen[9] sense.
[9] (1998) 194 CLR 610 at 621-623.
The victim of this offending, who is the former partner of the appellant, was entitled to feel safe and protected in her own home. That is the very point of the terms of the intervention order and the particular condition of the appellant’s bail.
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence.[10] The making of intervention orders is intended to provide this protection. If that protection is to be effective and orders of the court or conditions in bail agreements not to be mere scraps of paper, the court must impose punishments for the breach of those orders or agreements which will deter those who contravene the orders or agreements and others who might be minded to do so from offending in that way.
[10] R v Wilkinson [2008] SASC 172, (2008) 101 SASR 21.
In my view, notwithstanding that physical violence was not inflicted on the victim of this offending, it must have been terrifying to be woken in the dead of night by the appellant banging on her window, in breach of an intervention order and the bail agreement, and then to have him smash the window when she refused to answer his summons. This was the very sort of menacing that the order and the condition of the appellant’s bail was intended to prevent. While, if the appellant’s conduct had resulted in physical injury being suffered by the victim, that would have aggravated the circumstances of the offending, neither the lack of physical harm to the victim, the appellant’s intoxication at the time, and his subsequent cooperation, renders the sentence imposed manifestly excessive. On the contrary, I consider that this offending called for a sentence that served as an effective deterrent given the appellant’s lengthy criminal history and the fact that he had come before the court only months earlier for breach of an intervention order. The sentence was at the high end of the permissible range but within that range.
Conclusion
I would dismiss the appeal.
HINTON J:
I agree with Stanley J for the reasons he gives that this appeal should be dismissed.
I agree that the sentence is at the high end of the permissible range. The use of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) without the identification of notional sentences brings a degree of opacity that makes the appellate function difficult. Where, as here, the conduct satisfying the breach bail and breach intervention order offences was largely the same, approaching the determination of the appropriate sentence in the way the Judge did was not wrong in law, but it carried with it the risk of double punishment.
The offending occurred in the context of a relationship that had broken down, where the appellant had been subject of an intervention order for some time, where the courts had previously been involved, and where there had been “ongoing jealousy issues”.
Whether the Judge’s sentence is manifestly excessive can be roughly tested by considering the notional sentences that could have been imposed.[11] Having regard to all the circumstances of this case, including the respondent’s personal circumstances and antecedents, for the offence of damaging property, for which the maximum penalty is 10 years imprisonment, a starting point of around five -six months imprisonment would be appropriate. For the offence of failing to comply with a bail agreement, for which the maximum penalty is a $10,000 fine or imprisonment for two years, a starting point of around seven - eight months would be appropriate. For the offence of contravening a term of an intervention order, for which the maximum penalty is imprisonment for two years, a starting point of around 11 - 12 months would be appropriate. The sentences for the offences of breach bail and contravening a term of an intervention order would likely be ordered to be served wholly concurrently. The sentence imposed for the offence of damaging property would likely be ordered to be served partially concurrently with that for the offence of contravening a term of an intervention order. That means a total head sentence of around 16 months imprisonment would be appropriate.
[11] This approach was taken in R v Symonds [1999] SASC 217 at [23]-[27] (Doyle CJ, Prior and Mullighan JJ agreeing).
Accepting that sentencing is the quintessential exercise of a discretion in relation to which the outcome is not susceptible of one answer, the difference between the notional head sentence arrived at above and the Judge’s starting point is not such that the latter can be said to be plainly wrong. For these reasons, in my view it may be regarded as high, but not manifestly excessive.
I wish to say something more about sentencing and breaches of intervention orders.
In 2002 in R v McMutrie, Gray J noted that domestic violence had existed for centuries.[12] He added that “over the last 30 years its prevalence has been increasingly recognised” and that this “has caused considerable community and government concern”.[13] Since then the community’s understanding of the prevalence and personal, social and economic cost of domestic violence has grown. The discussion paper published by the Government of this State in July 2016 entitled, “Domestic Violence”, [14] makes plain that domestic violence remains prevalent and continues to be a cause of community and government concern as does the 2016 report of the Victorian Royal Commission into Family Violence.[15]
[12] (2002) 83 SASR 261 at [15].
[13] R v McMutrie (2002) 83 SASR 261 at [15] (Gray J, Perry and Williams JJ agreeing).
[14] The Discussion Paper can be viewed at (viewed 30 June 2017).
[15] The Royal Commission Report and recommendations can be viewed at: (viewed 30 June 2017).

In 2009 the National Council to Reduce Violence against Women and their Children commissioned a report from KPMG. That report, entitled, The Cost of Violence against Women and their Children, stated in its overview:[16]
Violence against women and their children will cost the Australian economy an estimated $13.6 billion this year. Without appropriate action to address violence against women and their children, an estimated three-quarters of a million Australia women will experience and report violence in the period 2021-22, costing the Australian economy an estimated $15.6 billion.
[16] The 2009 KPMG report can be viewed at (viewed 29 June 2017).
The 2009 report was updated in May 2016. That report stated:[17]
[17] The 2016 KPMG report can be viewed at (viewed 30 June 2017).
Our understanding of violence is also changing. As new research and information becomes available, the definition of violence has been refined and expanded. This means our knowledge of the impacts and costs of violence is evolving with new data and information.
…
KPMG’s estimates highlight the risk of experiencing violence faced by women and the extent of the issue for government’s and communities in Australia today:
1.This year alone over 1 million women have or will experience violence, emotional abuse and stalking.
2.The cost of violence against women and their children in Australia is $22 billion in 2015-16.
3.Victims and survivors bear $11.3 billion, or 52 per cent, of the total costs.
4.The Australian Government, state and territory governments bear $4.1 billion or 19 per cent of the total costs.
5.The community, children of women experiencing violence, the perpetrators, employers, and friends and family bear $6.5 billion, or 29 per cent, of the total costs.
6.Under representation of Aboriginal and Torres Strait Islander women, pregnant women, women with disability, and women who are homeless within national prevalence estimates may add a further $4 billion to the cost of violence against women and their children in Australia in 2015-16.
Against this background it is understandable that sentencing authorities are littered with references to the need to denounce, protect and deter. In R v Edigarov Wood CJ at CL said of those that perpetrate domestic violence:[18]
…violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.
[18] (2001) 125 A Crim R 551 at [41] (Studdert and Bell JJ agreeing).
In Parker v The Queen, Underwood J, sitting in the Tasmanian Court of Criminal Appeal, said:[19]
In my opinion sentencing for crimes of domestic violence should proceed in accordance with the following principles expressed by the Alberta Court of Criminal Appeal in R v Brown (1992) 73 CCC (3d) 242 at 249:
When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.
[19] (Unreported, Tasmanian Court of Criminal Appeal, Underwood J, 21 July 1994) at 11.
In R v Hamid, Johnson J, with whom Hunt AJA and Latham J agreed, said after referring to a number of authorities dealing with sentencing in cases of domestic violence:[20]
These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence, Australian Domestic and Family Violence Clearing House”, Issues Paper 9, 2004, pages 6-7.
Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime: J People, “Trends and Patterns in Domestic Violence Assaults”, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No 89, October 2005, page 2. Domestic assaults accounted for 35%-40% of the assaults recorded by police each year from 1997 to 2004: J People, above, at page 11.
[20] (2006) 164 A Crim R 179 at [77]-[78].
And in R v Parisi, Nyland J, with whom Debelle and Gray JJ agreed, said:[21]
… Domestic violence of any kind is to be abhorred. The fact that the appellant’s conduct took place in breach of a domestic violence restraining order is an aggravating factor. This means that general deterrence must play a significant part in the sentencing process to bring home to others who might be like-minded that the courts will not tolerate this type of behaviour. In my opinion, this can only be reflected adequately by the imposition of an immediate custodial penalty. …
[21] (2003) 86 SASR 183 at [21].
Intervention orders comprise one component of the Government’s response to domestic violence in this State.[22] In concluding his speech on the motion that the Intervention Orders (Prevention of Abuse) Bill be a read a second time the Attorney-General said:[23]
In enacting these reforms, Parliament will be sending a clear message that it will not tolerate the use of violence to control or intimidate another person, particularly in a domestic setting; that it recognises and abhors the lasting psychological and emotional damage to children from exposure to such violence; that it expects perpetrators to accept full responsibility for their violent behaviour; and that the paramount consideration is always the protection and future safety of the victims of abuse and the children who are exposed to it.
[22] See Council of Australian Governments, National Plan to Reduce Violence Against Women and their Children 2010-2022. The National Plan is available at (viewed 30 June 2017).
[23] South Australia, Parliamentary Debates, House of Assembly, 10 September 2009 at 3944.
It must be borne in mind that the abuse which intervention orders are intended to protect against, can take many forms. Physical violence is but one. Emotional and psychological harm is often debilitating and equally often profoundly so. It is important to the maintenance of confidence in the protection that intervention orders are intended to provide that the courts treat any breach as very serious and impose sentences which reflect the contemptuous nature of a breach of a court imposed intervention order, and, most importantly, denounce, protect and deter.
The appellant’s personal circumstances are tragic. He is confronted by many challenges. His antecedents are lengthy. I accept that alcohol abuse likely explains much of his offending. I agree with Stanley J that despite the conduct subject of the offending in this case not involving physical violence, for Ms Browne, the events on the night of 18 October 2016 must have been very frightening. The appellant was on bail. He had previously been before the courts for breaching the same intervention order. Whilst that breach was not the most serious example of a breach of an intervention order, he was on notice as to the seriousness with which any breach of such order is viewed.
Whilst alcohol had a part to play here, it does not mitigate the appellant’s offending. If anything, it aggravates it. In The Queen v Sewell and Walsh, Zelling J, with whom Mitchell and Cox JJ agreed, said:[24]
… there are still many offences in which drink is an aggravation in relation to penalty. There are others in which it is not. For example, a person under the influence of liquor, who is otherwise of a blameless character, may do something which is quite out of character and the liquor may be both an explanation and a factor in mitigation, but in other cases it may swing the penalty towards deterrence. In crimes of violence one may have some hope of putting rational arguments to deter a sober would-be assailant. That chance is much diminished if the assailant is under the influence of drink or drugs. Certainly an assault by a person under such influence is more frightening to the average person. Bray C.J. said in Birch v. Fitzgerald:[25]
Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated.
I entirely agree with respect with the observations of Bray C.J. in this matter.
[24] (1981) 29 SASR 12 at 15.
[25] (1975) 11 SASR 114 at 116-117.
As I have said, I agree that the sentence imposed is at the high end of the permissible range, but I cannot say it is plainly wrong. I would dismiss the appeal.