R v Saunders

The appeal concerned a sentence imposed on the appellant by a District Court Judge. The appellant had previously received a suspended sentence of two months imprisonment in November 2014, conditional on entering into a good behaviour bond for three years. Between May and September 2015, the appellant committed further offences, breaching this bond. While a conviction was entered for these offences, no further penalty was imposed. Subsequently, in October 2016, the appellant committed the offences that were the subject of this appeal, namely property damage, breach of bail, and contravention of an intervention order. These latter offences arose from an incident where the appellant attended the residence of Yvonne Rose Browne, smashed her bedroom window, and was found by police at the property.

The central legal issue before the appellate court was whether the sentence imposed for the October 2016 offending was manifestly excessive. The appellant argued that the starting point of 18 months imprisonment, which was then discounted for guilty pleas and time in custody, was too severe given the objective circumstances of the offending, including the lack of serious consequences, the appellant's intoxication, and his cooperation with police. The court was required to determine if the sentence fell outside the highest permissible range of sentences that could have been imposed by the sentencing judge.

The appellate court, comprising Peek, Stanley, and Hinton JJ, applied the principle that appellate intervention on the grounds of manifest excess is only warranted if the sentence imposed is demonstrably above the highest acceptable range. The court acknowledged that the offending, which involved waking the victim in the night and smashing her window while in breach of a bail agreement and an intervention order, was terrifying and precisely the type of conduct the orders were designed to prevent. Despite the lack of physical harm to the victim, the appellant's intoxication, and his subsequent cooperation, the court found that these factors did not render the sentence manifestly excessive. Instead, the court considered the sentence necessary as a deterrent, given the appellant's extensive criminal history, including prior convictions for similar offences. The court concluded that while the sentence was at the high end of the permissible range, it remained within that range.

The appeal was dismissed. Hinton J, while agreeing with the dismissal, noted that the sentencing judge's approach, particularly the use of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) without clearly identifying notional sentences, made the appellate review difficult and carried a risk of double punishment. However, Hinton J also provided a rough test by considering notional sentences for each offence, suggesting a total head sentence of around 16 months imprisonment would have been appropriate, indicating that the imposed sentence was indeed at the higher end of the permissible range.