R v Smart - [2018] SASCFC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v SMART
[2018] SASCFC 123
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Stanley)
27 November 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Appeal against conviction and sentence.
The appellant was charged with 12 counts alleging various offences against the complainant occurring over a continuous 20-hour period in November 2015. He pleaded guilty to one count of threatening life, one count of aggravated cause harm with intent to cause harm and one count of aggravated assault. He was found guilty by jury verdict of one count of aggravated kidnapping, one count of aggravated assault, two counts of aggravated causing harm with intent to cause harm, three counts of rape and one count of false imprisonment.
Held (Stanley J, Kourakis CJ and Kelly J agreeing): Appeal against conviction dismissed.
1. Although it did not refer to the presence of a court companion, the warning given by the trial judge at the commencement of the complainant’s evidence was sufficient to conform to the requirements of s 13A(12) of the Evidence Act. If the Court is wrong in that conclusion and an error of law occurred, the Court would apply the proviso.
2. The Court did not order that special arrangements be made for the taking of V's evidence. In these circumstances the application of s 13(6) and (7) of the Evidence Act, which set out the procedural requirements where a witness is accompanied by a court companion, were not invoked. Further, there is no risk that the jury impermissibly reasoned that the presence of V's wife was in some manner relevant to their assessment of V.
3. Referring the jury to s 34N of the Evidence Act where it was clearly relevant to some counts did not risk confusing the jury in relation to those counts where the question of consent was not in issue.
4. The absence of a specific direction that the written directions were subordinate to the oral directions did not cause a miscarriage of justice.
5. The mere fact a judge’s questions may suggest a view of the facts will not, without more, create a risk that the jury will be overborne by the judge’s view. The questioning of the appellant by the judge has not resulted in a miscarriage of justice.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
The judge imposed a single sentence for three categories of offences designated by the location of the offending, pursuant to s 18A of Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), to be served cumulatively. That resulted in a total head sentence of 20 years. The judge imposed a non parole period of 15 years.
Held (Stanley J, Kourakis CJ and Kelly J agreeing): Appeal against sentence dismissed.
1. There was no error in the judge declining to reduce the head sentence in accordance with the totality principle. It has little part to play when a sentence is imposed in accordance with s 18A. Further, for a particularly serious crime a sentence that is crushing in its effect must be imposed. The head sentence of twenty years is not manifestly excessive.
2. While the appellant’s antecedents and personal circumstances did not provide a reason for the fixing of a lengthy non-parole period, considerations of the punitive and protective purposes of punishment, together with the lack of real insight and remorse on the part of the appellant and the problematic prospects for rehabilitation, persuade the Court that appellate intervention is not warranted. The non-parole period is not manifestly excessive.
3. When utilising s 18A it is desirable to set out the starting point for the sentences on each offence. However, it is not an error of law to proceed to use s 18A without doing so. In the context of the judge’s reasons as a whole, the sentencing remarks adequately explain how the judge fixed the sentences pursuant to s 18A in respect of the three groups of offences.
4. If the judge erred in failing to explain why he did not afford the appellant the full 10 per cent discount, this was a process error. In this instance, the Court would refrain from interfering with the sentence, as the sentence is appropriate notwithstanding the error.
5. Alternatively, it is possible that the judge applied the maximum discount of 10 per cent, or some lesser discount, which was subsumed in the fixing of the sentence pursuant to s 18A. If the Court proceeds on that possibility there is no error.
6. While it is desirable to set out in sentencing remarks the broad approach taken by the judge to accumulation or concurrency, there is no legal requirement to do so.
7. There was no error in the judge declining to make each discrete group of offences concurrent.
Criminal Law Consolidation Act 1935 (SA) s 19, s 20, s 24, s 39, s 48; Evidence Act 1929 (SA) s 13, s13A, s 34N; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Evidence Act 1977 (Qld); Evidence Act 1906 (WA), referred to.
R v Michael (2008) 181 A Crim R 490; Durani v WA [2012] WASCA 172, distinguished.
R v AAR [2014] QCA 20; Kalbasi v Western Australia (2018) 92 ALJR 305; Lane v The Queen (2018) 92 ALJR 689; R v Dunn (2006) 94 SASR 177; R v Tulisi [2008] SASC 306; R v Burns (2009) 103 SASR 514; R v T, WA (2014) 118 SASR 382; R v Mohammadi [2011] SASCFC 154; Cook v The Queen (2016) 260 A Crim R 454; R v L, GA [2015] SASCFC 166; R v Horstmann [2010] SASC 103; The Queen v Morse (1979) 23 SASR 98; R v Copeland (No 2) (2010) 108 SASR 398; Attorney-General (SA) v Tichy (1982) 30 SASR 84; R v E, AD (2005) 93 SASR 20; R v Roberts (2016) 125 SASR 40; R v Standley [2016] SASCFC 141, discussed.
R v Michael (2008) 181 A Crim R 490; Bromley v The Queen (1986) 161 CLR 315; R v Corrigan (1998) 74 SASR 454; Robinson v The Queen (1999) 197 CLR 162; R v Kreutzer (2013) 118 SASR 211; R v Walkuski [2010] SASC 146; R v Coss [2015] QCA 33; R v Drake [2013] QCA 222; R v Coss [2015] QCA 33; Reeves v The Queen (2013) 88 ALJR 215; R v TN (2005) 153 A Crim R 129; Dhanhoa v The Queen [2003] HCA 40; R v MacBeth [2008] SASC 71; R v Kentwell [2014] HCA 37; R v Knott [2007] SASC 74; R v Dwyer (2015) 121 SASR 587; R v Wakefield (2015) 121 SASR 569, considered.

R v SMART
[2018] SASCFC 123
Court of Criminal Appeal: Kourakis CJ, Kelly and Stanley JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Stanley J and these additional reasons on the application of the proviso in relation to ground 1 of the appeal, and on ground 5 which complains of the Judge’s questioning of the appellant in the course of his evidence.
If the Judge’s direction on the giving of evidence by audio-visual link (the AVL direction) did not discharge the obligation imposed by s 13A of the Evidence Act 1929 (SA), I would apply the proviso for two independent but related reasons. First, in the context of the very strong prosecution case, the failure to separately identify the presence of a support person, as a special arrangement which the jury should ignore, could not have affected in any way the jury’s evaluation of the conflicting testimonies of the appellant and the complainant. The jury’s acceptance of the complainant’s testimony over the appellant’s, and its satisfaction that that evidence, and the evidence which corroborated it, proved the appellant’s guilt beyond reasonable doubt can therefore be acted on by this Court. The proviso can be applied, both because the evidence establishes the appellant’s guilt and because the irregularity is relatively minor and technical.
Secondly, even if I were to proceed on the doubtful premise that, despite the strong prosecution case and the AVL direction, the jury may have treated the presence of a support person as the trial Judge’s endorsement of the truth of the complainant’s evidence, and as a fact from which it could infer the appellant’s guilt, I would, on my evaluation of the evidence and independently of the jury’s verdict, find that it proved the appellant’s guilt of the offences.
The appellant admitted in his evidence, and by his plea of guilty, that he threatened to kill the complainant when his co-accused delivered her to him at Mannum Waterfalls. He admitted that his plan was to take her to Pellaring Flat to frighten her. Those admissions are a confession to kidnapping the complainant (count 1).
There was no video evidence of, or independent witnesses to, the assaults charged in counts 3 and 4, which the complainant testified were committed by slapping and tasering her on the drive to Pellaring Flat, but which the appellant denied. However, there was objective evidence of the offences charged in counts 5 and 6, the tasering and striking of the complainant’s forehead, after they arrived at Pellaring Flat. That evidence was the video taken by the appellant on his phone which showed the complainant handcuffed to a tree, digging the soil underneath her, and being assaulted. There was also the real evidence of the presence of the latex gloves and a partly dug hole found by police when they inspected the scene. The appellant, accepting the inevitable, pleaded guilty to those counts. Those confessions overwhelmingly corroborate the complainant’s testimony of the commission of the offences charged in counts 3 and 4.
The appellant’s explanation that he committed the offences charged in counts 5 and 6 to scare the complainant out of her drug addiction is bizarre. The explanation is also inconsistent with the messages, ‘the mouthy cunt was found’ and ‘someone got real mouthy’ which accompanied the photo of the complainant’s leg in chains which the appellant sent to two people later that night. It is also inconsistent with the video footage of the complainant attempting to escape shortly after the appellant had taken her to his home. Again, the appellant’s explanation that he pushed the complainant to the ground and pushed her back into his house merely because he did not want her to leave with her hands still bound is incredible.
The indisputable evidence that the complainant was bound at Pellaring Flat, when they arrived later at his home, and later that night as recorded in the photos sent by text, corroborate the complainant’s evidence of her unlawful imprisonment (count 10). So too does the evidence of the complainant’s broken eye socket, which corroborates her account that she was assaulted at his home. Again, the explanation that the complainant’s eye socket might have been broken by her own actions in hitting her head against a pillar is falsified by its physical and behavioural improbability.
The evidence to which I have referred which, by its combined force, proves beyond reasonable doubt that the appellant detained, bound and assaulted the complainant over an extended period of time, also excludes any rational hypothesis other than that the motive for that conduct was the appellant’s anger that the complainant ended their sexual relationship. The appellant’s proven motive for detaining and assaulting the complainant is strong corroboration of her evidence that the appellant sexually assaulted her (counts 7, 11 and 12).
I acknowledge that the appellant denied the sexual assaults on oath. Only in the rarest of cases could a Court of Criminal Appeal be satisfied beyond reasonable doubt of the commission of offences which were denied by the appellant on oath. This is such a case because the appellant’s explanations for his admitted and/or objectively proved conduct are fanciful beyond belief and because of the strength of the corroborating evidence.
The acquittal on count 9 is not inconsistent with my assessment of the evidence for the reasons given by Stanley J.
On ground 5 I wish only to add the following observations and reasons on the last of the passages reproduced in [157] of the reasons of Stanley J. I accept that the Judge’s questions were unnecessarily pointed and would have conveyed his incredulity to the jury. However, the Judge’s questions did no more than draw out the bizarreness, which the jury would in any event have appreciated, of the appellant’s explanation for pushing the complainant when she was running away down the driveway with her hands tied behind her back. The Judge’s questions could not have influenced the jury’s evaluation of the evidence, because no juror, considering the evidence reasonably, could possibly have given the appellant’s explanation any weight at all.
KELLY J:
I agree that the appeal should be dismissed for the reasons given by both Kourakis CJ and Stanley J.
STANLEY J.
Introduction
This is an appeal against conviction and sentence.
The appellant was charged with 12 counts alleging various offences against the complainant occurring over a continuous 20-hour period in November 2015.
The appellant pleaded guilty to one count of threatening life contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (count 2), one count of aggravated cause harm with intent to cause harm contrary to s 24(1) of the CLCA (count 5) and one count of aggravated assault contrary to s 20(3) of the CLCA (count 6).
The appellant was found guilty by jury verdict of one count of aggravated kidnapping contrary to s 39(1) of the CLCA (count 1), one count of aggravated assault contrary to s 20(3) of the CLCA (count 3), two counts of aggravated causing harm with intent to cause harm contrary to s 24(1) of the CLCA (counts 4 and 8), three counts of rape contrary to s 48(1) of the CLCA (counts 7, 11 and 12) and one count of false imprisonment (count 10).
Conviction appeal
The grounds of appeal against conviction are:
Ground 1 – the learned trial judge erred in failing to adequately direct the jury pursuant to s 13A of the Evidence Act 1929 (SA), in that the direction given at the commencement of the complainant’s evidence did not refer to the presence of a court companion;
Ground 3 – the learned trial judge erred by allowing the witness V to be accompanied by his wife during the course of his evidence;
Ground 4(c) – the learned trial judge erred in providing written directions to the jury insofar as the written directions contain material extraneous to the jury’s deliberations;
Ground 4(d) – the learned trial judge erred in providing written directions to the jury insofar as there was no direction that the written directions were subordinate to the oral directions; and
Ground 5 – the learned trial judge impermissibly questioned the applicant in a manner capable of conveying to the jury a doubt as to the veracity of his evidence (permission required).
Factual background
The complainant originally resided in Western Australia. She had been using drugs and wanted to get away from Perth. She arrived in Adelaide in October 2015. On 15 October 2015 she went to stay with the appellant at his house in Mannum. He was a friend of a friend. They immediately began a consensual sexual relationship.
Through the appellant the complainant met the co-accused X, from whom she obtained drugs.
The relationship between the complainant and the appellant quickly soured. They exchanged numerous abusive texts.
The complainant planned to return to Perth on 7 November 2015. The appellant dropped her at a bus stop in Murray Bridge. From there she travelled to Adelaide Airport.
Later that day the complainant received threatening text messages from the appellant to the effect that upon her return to Perth she would be met by people who intended to harm her. Evidence of those text messages was admitted at trial. The complainant also received text messages from X inviting her to stay with him in Adelaide and informing her he had recently obtained drugs. These text messages were part of a plan to lure the complainant to Mannum Waterfalls carpark where she would be met by the appellant.
X gave evidence the appellant instigated the plan. The appellant originally gave evidence that he agreed to meet X at the car park but did not know exactly why they were meeting. Later however he agreed X offered to deliver the complainant to him and he accepted the offer.
The complainant, who had checked in at the airport, delayed her flight, left the airport, and took a bus back to Mount Barker. X picked her up in his car from the service station and drove to Mannum Waterfalls. There was coded communication between the appellant and X via UHF radio while X and the complainant were on the way to Mannum Waterfalls.
In the car, X pretended to be angry with the appellant. He indicated they were going to meet the appellant at the Mannum Waterfalls car park where he was going to harm him. At Mannum Waterfalls, X asked the complainant to get out of the car so that he could take a private telephone call. He locked the car doors. The complainant saw the appellant driving toward them. He had parked his car further away to conceal his presence. The complainant tried to re-enter X’s car but the doors were locked and X would not look at her.
The appellant was wearing latex gloves when he approached the complainant from his car. He was abusive toward her. He told her, “you’re dead bitch” (count 2). He grabbed her and began to force her toward his car in the course of which he slapped the left side of her face (count 3). The appellant had come prepared with handcuffs, wire, tape and gloves. He handcuffed the complainant’s hands behind her back. X gave the appellant a black taser. The appellant retrieved the complainant’s suitcase and handbag from X’s car. He then left the car park with the complainant, who remained handcuffed in the front passenger seat (count 1). X left in his own vehicle. The appellant’s evidence was that the complainant voluntarily entered his car at the Mannum Waterfalls carpark.
The appellant drove the complainant to an area of bushland at Pellaring Flat. Whilst driving, the appellant tasered the complainant on her right arm and right thigh (count 4). He continued to abuse her, and threatened her and her children. The appellant stopped the car and told the complainant to get out. He dragged her to a tree, handcuffed her to it and told her to start digging. He told her “you’re digging your grave bitch”. The appellant filmed this on his phone. The video was tendered in the trial. In the video the complainant can be seen bleeding from her right eyebrow. As the complainant digs in the dirt, the appellant tells her to “keep digging mole” and tasers her lower back (count 5). He calls her a “fucking mouthy whore”, and strikes her forehead (count 6). In the video the appellant is laughing.
The complainant broke the branch to which she was handcuffed and one of the handcuffs. She ran. The appellant chased her and pushed her to the ground. He knelt on her shoulders and tried to taser her face.
The appellant stood on the complainant’s neck and shoulder making it difficult for her to breathe. He dragged the complainant to his car and pushed her face down onto the passenger seat. He said “this is a freebie bitch”, pulled up her skirt and pulled down her underwear. He then forced his penis into her anus. He did not use a condom. The appellant said “I bet you enjoyed that” (count 7). The appellant’s evidence was that this act did not happen.

X gave evidence that the appellant messaged him three videos, all showing aspects of the appellant’s assaults on the complainant at Pellaring Flat. When police attended at the appellant’s house and arrested him, they asked to take possession of his mobile phone. The appellant damaged the phone before it could be seized by police. Only one video of an assault on the complainant at Pellaring Flat was recovered by police. This was the video of the complainant digging in the dirt, which the appellant had sent to his ex-girlfriend, Z.
Before leaving the scene at Pellaring Flat, the appellant tried unsuccessfully to tape the complainant’s hands together. Instead, he then used wire to wrap her wrists together behind her back. The wire cut into her wrists. She was restrained in this way during the drive back to the appellant’s house. The appellant’s account was that he took the victim to Pellaring Flat to “scare the living daylights out of her” and cause her “to wake up to her drug habit ways”. He said he tied the complainant’s hands together because she was hysterical and he was worried she would jump out of the car.
After the appellant’s arrest, police located the area at Pellaring Flat. They found a broken handcuff, latex gloves, tape, a tree with marks consistent with someone being tied to it, the beginnings of a hole, and a beer can on which DNA consistent with that of the appellant was found.
The complainant gave evidence that on the drive from Pellaring Flat to the appellant’s house the appellant forced her to fellate him (count 9). She did not initially recount this offence in the course of her examination-in-chief but recalled it later in her evidence. The appellant’s evidence was that this act did not happen. He was acquitted of this count.
As the appellant drove he told the complainant that 10 of his mates were going to “gang-rape” her, and that things were going to keep happening to her for the next couple of days. Closed circuit television (CCTV) footage from the appellant’s house shows them arriving and entering the house with the complainant’s hands still tied together. The video appears to show the appellant kicking the complainant after she has entered the house although the complainant did not give evidence of this. This footage was admitted at trial.
About 10-15 minutes after arriving at the house, the complainant attempted to escape. She ran up the driveway screaming for help. Her hands were still wired behind her back. The appellant chased and caught up to her. He knocked her to the back of the head or shoulder area, causing her to fall to the ground. He then dragged the complainant back to the house. CCTV footage captured the complainant, with the appellant close behind her, running from the back door and up the driveway toward the road. There she falls over and the appellant drags her back to the house. The appellant’s evidence was that he did push the complainant in the driveway but did not intend to cause her any harm.
Back inside the house, the appellant punched the complainant in the right eye with his fist, breaking her eye socket (count 8). The appellant gave evidence that the complainant had walked up to a pillar and intentionally hit her head against it. This act, he said, could be seen on the CCTV footage.
Inside, the appellant chained the complainant’s leg to a table. He made a phone call to X. The complainant heard him say “I’m having a big party. Come and see what I’ve been -I’ve been having lots of fun.”
A short time later, X and his girlfriend Y arrived. X gave the appellant a silver taser and reclaimed the black taser. The appellant showed X and Y the videos he had taken of the complainant digging her grave at Pellaring Flat, and the recording of him pushing her down the driveway as she tried to escape. The three of them used cocaine. Later, X and Y left. X gave evidence of this visit and confirmed the significant aspects of the complainant’s account.
After X and Y left, the appellant moved the complainant to his bedroom and chained her to the bed post. The appellant bent the complainant over the side of the bed, pulled her jeans down and held her down by the back of her head. The appellant inserted his penis into the complainant’s anus and had intercourse with her (count 11). The appellant then grabbed the complainant by the hair, sat her on the bed facing him, and then forced her to perform fellatio on him (count 12). The complainant was gagging. The appellant pushed her to the corner of the bedroom. He agreed to get her a glass of water. When he returned he threw the water in her face. The complainant fell asleep in the corner of the room and slept there that night. She remained chained to the bed. The appellant’s evidence was that these two acts of sexual intercourse did occur but that the complainant consented to them.
In the morning the appellant moved the complainant into the lounge room, with her ankles still chained together.
In the course of her imprisonment the appellant sent photographs of the complainant’s leg in chains to several people including X, W (X’s ex-partner, and Z (the appellant worked with her father) followed by a text which stated “the mouthy cunt was found”. W became concerned and took the photograph to the police the following morning. That prompted the police to attend the appellant’s residence. Z also received a message from the appellant containing a photo of a chain around the complainant’s leg with the accompanying message, “someone got real mouthy”. On 12 November 2015, Z provided to the police this photograph and the two videos sent to her by the appellant. The appellant gave evidence that the photograph of the complainant with her leg chained up was part of a scheme they had concocted to see if people would give or loan money to her. His evidence was that the complainant suggested chaining herself up, and she was free to leave if she wanted to.
On Monday morning, the complainant heard a knock on the door and a voice saying it was the police with a warrant to search the house. While the police waited at the locked door, ostensibly for the appellant to locate his door key, the appellant used pliers to remove the chains from the complainant. He told her to sit on the couch and to tell the police she had been mugged. Pliers and a chain were later found next to the couch where the complainant was located.
The police entered the house and found the complainant in the lounge room. She was bruised and visibly shaken. She was removed from the house and immediately told a female officer that she had been raped the previous afternoon and night.
The complainant was examined at the Royal Adelaide Hospital on 9 November 2015. Photographs of her injuries were admitted at trial.
Ground 1: Section 13A(12) of the Evidence Act 1929 (SA)
Pursuant to s 13A of the Evidence Act 1929 (SA) (Evidence Act) two special arrangements were in place when the complainant gave evidence. The complainant gave evidence from a remote location by means of CCTV and she was accompanied by a court companion.
Section 13A(12) of the Evidence Act provides:
If, in a criminal trial, a court makes special arrangements for taking the evidence of a vulnerable witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
The kinds of special arrangements the Court can make are prescribed by s 13A(2) which provides:
(2) Without limiting the kind of order that may be made under this section, the court may make 1 or more of the following orders:
(a)an order that the evidence be given outside the trial court and transmitted to the trial court by means of closed circuit television;
(b)an order that the evidence be taken outside the trial court, and that an audio visual record of the evidence be made and replayed in the trial court;
(c)an order that a screen, partition or one-way glass be placed to obscure the view of a party to whom the evidence relates or some other person;
(d)an order that a defendant be excluded from the place where the evidence is taken, or otherwise be prevented from directly seeing and hearing the vulnerable witness while giving evidence;
(e)an order that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the vulnerable witness or minimise the witness's embarrassment or distress, including (for example)—
(i)that the witness be accompanied by a relative, friend or other person for the purpose of providing emotional support; and
(ii)if the witness has a physical disability or cognitive impairment—that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress (including, if the witness has complex communication needs, with such communication assistance as may be specified by the court); and
Note—
Communication assistance for a vulnerable witness with complex communication needs may be provided, for example, by a communication partner or by using a device (such as a speak-and-spell communication device).
(iii)that extra allowance be made for breaks during, and time to be given for, the taking of evidence; and
(iv)that, while the evidence is being taken, the judge and any lawyer present in the court not wear a wig or gown (or both).
The judge directed the jury in the following terms:
Ladies and gentlemen, the evidence of the complainant in a minute you will see again by closed circuit television. These, again, are fairly normal arrangements and you should have regard to her evidence as if she was giving evidence in the courtroom with us and you shouldn’t hold it against the accused for these special arrangements being adopted.
Section 13A(12) is couched in mandatory terms. If a trial judge fails to comply with the requirement to give the warning enshrined in s 13A(12) this Court can uphold the conviction only if it is convinced, upon its own review of the whole of the record, that there has been no substantial miscarriage of justice in terms of s 353(1) of the CLCA.[1]
[1] R v Michael [2008] QCA 33 at [38], (2008) 181 A Crim R 490 at 496.
In circumstances where the Court makes special arrangements for taking the evidence of a vulnerable witness the judge must give the warning required by the subsection. While the Parliament uses the language of “warn the jury”, the statutory injunction is more in the nature of a direction not to use the fact of the special arrangements than a warning about the risk of how a jury might use particular evidence. It is not necessary that the direction required by these provisions be given in the precise terms stipulated in the subsection. No particular form of words is required.[2] The direction should be framed so as to comply with the legislation but also must be both “fair and intelligible”.[3] The provisions of s 13A(12) may be applied without undue formality.[4] What is required is a direction that conforms to the substance of the statutory purpose for which the subsection is enacted. That purpose is to protect an accused person from the risk that the jury might impermissibly reason that the accused is guilty by reason of the special arrangements being made. The provision of s 13A(12) is to protect the accused from prejudgment and thereby ensure a fair trial. The direction is required to address two matters. First, that the jury are not to draw from the fact of the arrangements any adverse inference; and second, that they are not to allow the arrangements to influence the weight they give to the evidence of the witness. The obvious adverse inference which might be drawn from such arrangements is that the witness has a well-founded fear of the accused.
[2]    Bromley v The Queen [1986] HCA 49 at [6]-[8], (1986) 161 CLR 315 at 318-319; R v Corrigan (1998) 74 SASR 454 at 465.
[3]    Robinson v The Queen (1999) 197 CLR 162 at [23].
[4]    R v Michael [2008] QCA 33 at [32], (2008) 181 A Crim R 490 at 495.
The appellant submits that the judge erred as a matter of law in failing to give a warning to the jury pursuant to s 13A(12) with regard to the presence of the court companion while the complainant gave her evidence. The provision of a court companion is a “special arrangement” within the meaning of s 13A.[5] The respondent submits that in this case the judge did give to the jury a direction that complied with the terms of the provision that where special arrangements for taking the evidence of a witness are made the jury is not to draw from that fact any inference adverse to the defendant and not to allow the special arrangements to influence the weight to be given to the evidence. In the alternative, the respondent submits that if there was an error of law, no substantial miscarriage of justice resulted and the Court can apply the proviso.
[5] See s 13A(2)(e)(i).
Where an order is made for more than one special arrangement, the judge must give a warning that encompasses each arrangement.[6]   The warning was given in relation to the complainant’s evidence albeit not by express reference to the presence of the court companion. The warning was given immediately before the commencement of the complainant’s evidence. At the same time the judge referred to the existence of the court companion in the presence of the jury.   The warning conveyed to the jury the requirement that they avoid the kind of reasoning that the subsection precludes. The jury were directed to the fact that they were to see and hear the complainant’s evidence by CCTV. The jury were told that “these … are fairly normal arrangements”. The jury were told that they should not hold it against the accused that “these special arrangements” were being adopted. That conveyed to the jury in easily comprehensible language that they were not to draw an adverse inference by reason of the arrangements. The jury were further told that in these circumstances they should regard the complainant’s evidence as if she was giving evidence in the courtroom. That could only be understood as meaning the arrangements do not give some greater weight to the evidence of the witness and that evidence should be evaluated in the same manner as if the arrangements had not been made. The judge in the impugned warning referred twice to the “arrangements” in the plural. That indicated to the jury that the judge was referring to more than one arrangement. The reference to the court companion in close proximity to the warning relating to “special arrangements” implicitly encompassed a reference to the court companion as part of the special arrangements to which the judge was referring.[7]   The facts of this case are distinguishable from R v Drake[8] where the statutory direction was given without any mention of the support person. Unlike Drake, in this case there is a logical reason why the jury would reason that the direction expressly referrable to the complainant’s evidence being given by CCTV also concerned the presence of the court companion.
[6]    R v Coss [2015] QCA 33 at [15].
[7]    R v Drake [2013] QCA 222 at [24], (2013) 233 A Crim R 588 at 593; R v Coss [2015] QCA 33 at [14].
[8]    R v Drake [2013] QCA 222, (2013) 233 A Crim R 588.
In my view, what was said to the jury warned them against the two kinds of reasoning precluded by the provision that otherwise might result from the impression they could form from the making of the special arrangements. The jury could not have failed to appreciate that the presence of the court companion was a departure from the practice by which other witnesses gave evidence in the trial. The jury must have appreciated, even without the judge saying so expressly, that the presence of the court companion was an aspect of the “special arrangements” to which the judge referred.
In addition, in the course of the trial two other witnesses gave evidence with special arrangements. Prior to the complainant giving evidence, W, the former partner of X, gave evidence via closed circuit television while she was heavily pregnant. Her evidence immediately preceded that of the complainant. The judge gave the requisite direction to the jury immediately before the commencement of her evidence. After the complainant’s evidence the former partner of the appellant, Z, gave evidence with a screen between her and the appellant. The judge gave the requisite warning to the jury.
The other warnings given by the judge in relation to the evidence of W and Z must have conveyed to the jury that there are a range of special arrangements that the Court can utilise for the protection of vulnerable witnesses. There can be no real possibility of the jury failing to appreciate that the presence of the court companion was one more example of those special arrangements and heeding the direction that the judge gave in relation to the approach to be taken by the jury where those special arrangements were made. There was no real risk of the jury reasoning that the presence of the court companion was not one of the special arrangements the subject of the judge’s warning.
The facts of this case can be contrasted with R v Michael[9] and Durani v Western Australia,[10] relied on by the appellant. In those cases the trial judge failed to give any direction to the jury notwithstanding the existence of a cognate provision to s 13A(12) in the Evidence Act 1977 (Qld) and the Evidence Act 1906 (WA). In this case a warning was given. The issue is whether it was sufficient to conform to the requirements of s 13A(12). I am satisfied it was.
[9] [2008] QCA 33, (2008) 181 A Crim R 490.
[10] [2012] WASCA 172.
This case has some similarities to R v AAR,[11] where the Queensland Court of Appeal held that instructions given by a judge to a jury were sufficient to comply with s 21AW of the Evidence Act 1977 (Qld) notwithstanding that the instructions failed to refer to the presence of a support person in circumstances where that instruction had been given the previous day in relation to another witness.
[11] [2014] QCA 20.
In these circumstances I reject the submission that the failure to give the warning required by s 13A(12) constitutes an error of law.
If I am wrong in that conclusion and an error of law occurred by reason of the failure to give the warning with respect to the use of a court companion while the complainant gave her evidence, the Court must consider the proviso. The issue is whether no substantial miscarriage of justice has actually occurred as a result of the trial being irregular. The appellant submits the proviso cannot be applied in this case where proof of the offences depended on the jury’s evaluation of credibility of the complainant and the appellant, the appellant having given evidence on oath denying the offences. I do not accept this submission.
In Kalbasi v Western Australia,[12] the majority judgment said:[13]
A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not. Krakouer was a case of a misdirection on a matter of law which reversed the onus of proof in relation to the intent with which the “drugs” were possessed, effectively requiring the jury to find that element established; and yet, were it not for other circumstances of the case, the proviso may have been applied. The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred.
[Footnote omitted.]
[12] [2018] HCA 7, (2018) 92 ALJR 305.
[13] [2018] HCA 7 at [57], (2018) 92 ALJR 305 at 319.

Subsequently, in Lane v The Queen,[14] Gageler J said:[15]
For the appellate court to conclude that no substantial miscarriage of justice “has actually occurred” is for the appellate court to conclude that, notwithstanding the error or other irregularity, no substantial miscarriage of justice “in fact” occurred. And for the appellate court to conclude that “no substantial miscarriage of justice” in fact occurred is for the appellate court to conclude that the error or irregularity affected neither: (1) the outcome of the trial, such as to have denied the appellant “a chance of acquittal which was fairly open to him or her”; nor (2) the process of the trial, to an extent sufficient to warrant the conclusion that a substantial miscarriage of justice occurred without need of inquiry into its effect on the outcome of the trial.
Where, as here, the appeal is against a conviction entered on a verdict of guilty returned by a jury, the jury was at the trial and remains for the purpose of the application of the proviso the “constitutional tribunal for deciding issues of fact”. Weiss v The Queen, whatever else it might mean, cannot mean that the appellate court in applying the proviso is authorised to “substitute trial by judge for trial by jury”.
Except where the appellate court concludes that the error or irregularity led to a failure of process so serious as to have amounted without more to a substantial miscarriage of justice, “deciding whether there has been no substantial miscarriage of justice necessarily invites [the] attention [of the appellate court] to whether the jury’s verdict might have been different if the identified error [or irregularity] had not occurred”.
The ultimate question for the appellate court in considering the application of the proviso is then whether the error or irregularity denied the appellant a real chance of acquittal or, to put the same question another way, whether the jury’s verdict would inevitably have been the same if the identified error or irregularity had not occurred. Only if the appellate court after reviewing the record of the trial confidently answers that ultimate question in the affirmative can the appellate court conclude that no substantial miscarriage of justice has actually occurred.
[Footnotes omitted.]
[14] [2018] HCA 28.
[15] [2018] HCA 28 at [53]-[56], (2018) 92 ALJR 689 at 698.
The conclusion that the appellant’s guilt was proved by evidence properly admitted at the trial is a necessary, but not a sufficient condition, for the dismissal of the appellant’s appeal. The record of the trial includes the fact of the verdict. Here the legal error at the trial was a failure to give a direction to the jury not to reason in an impermissible way adverse to the appellant by reason of the presence of a court companion during the complainant’s evidence. The significance of the verdict is to be assessed in light of the capacity of the error in failing to give the direction, to have led the jury wrongly to reason to guilt.[16]
[16] Reeves v The Queen [2013] HCA 57 at [50], (2013) 88 ALJR 215 at 223-224.
The real issue at the trial was whether the appellant was guilty of the rapes the subject of counts 7, 9, 11 and 12. The appellant had pleaded to counts 2, 5 and 6. In his closing address, counsel for the appellant at trial effectively conceded that the jury would find the appellant guilty of counts 1, 3 and 8. In his evidence, the appellant admitted count 10, the offence of false imprisonment.[17] Nonetheless, the judge correctly directed the jury that they could not find the appellant guilty of counts 1, 3, 8 and 10 unless they were satisfied the respondent had proved these matters beyond reasonable doubt.
[17] The only issue was the length of the period of imprisonment. That was a matter for sentencing.
The appellant’s evidence was that the alleged rapes the subject of counts 7 and 9 did not occur, and the alleged rapes the subject of counts 11 and 12 were consensual.
In the circumstances, the error in failing to refer to the presence of the support person when giving the warning was not material. The jury acquitted the appellant on the charge of rape in count 9. If the error was material, it would have infected the jury’s evaluation of all of the complainant’s evidence and its consideration of the appellant’s guilt. Clearly that was not the case. The jury plainly was able to discriminate between the evidence of the complainant it was prepared to act on and the evidence it was not prepared to act on in being satisfied of the appellant’s guilt beyond reasonable doubt. Logically the presence of the court companion did not prevent the jury from entertaining a reasonable doubt on one of the charges against the appellant.
The judge’s failure to give a warning in terms of s 13A(12) in relation to the presence of the court companion deprived the jury of a direction not to engage in a process of reasoning in making findings of fact unfavourable to the appellant, based on a possible inference that the complainant had a justified fear of the appellant. Given the underlying purpose of the warning, the Court can be satisfied that no substantial miscarriage of justice has actually occurred. That purpose is to preclude the risk that the jury might reason that the special arrangements are made because the witness giving evidence has justifiable reason to fear the accused. The failure of the judge to expressly refer to the presence of the court companion was not a material error. In this case the accused had already pleaded guilty to crimes of violence against the witness,[18] contained in videos he had made which were admitted into evidence. There could be no doubt in the jurors’ minds that the complainant had a legitimate fear of the accused. Accordingly the risk that they could have formed an adverse prejudgment as a result of the failure to give the direction in relation to the presence of the court companion can be excluded.
[18] One count of threatening life, one count of aggravated cause harm with intent to cause harm and one count of aggravated assault.
Further, for the reasons set out above, the jury must have appreciated the presence of the court companion during the complainant’s evidence was an aspect of the special arrangements about which the judge gave the warning. The jury could not have reasoned so illogically as to think that they should take any different approach to the complainant’s evidence because or notwithstanding that she gave that evidence with a court companion present. In these circumstances it cannot be that the presence of the court companion caused the jury to draw any adverse inference against the accused or to give the evidence of the complainant undue weight.
Accordingly, the Court can apply the proviso. The whole of the evidence proves the appellant’s guilt of those counts upon which he was convicted. The appellant’s evidence that the acts of intercourse constituting counts 11 and 12 were consensual is incredible in the face of the irrefutable evidence of the violence the appellant had inflicted upon the complainant in the hours shortly prior to those acts. The appellant’s evidence is that he had imprisoned her in his home for a period of time but then released her, leaving her free to depart, which she declined to do and, instead, instigated two acts of sexual intercourse, notwithstanding everything that had previously occurred. On his account, she wanted rough sex and wanted to practice her deep throat technique. This is patently unbelievable. The evidence in relation to the allegation of rape that is count 7 is not simply oath‑on‑oath. The complainant’s evidence of the appellant, having knocked her down and dragged her back to the car, is consistent with the evidence on the CCTV footage at his house of him later doing the same thing. Her evidence in relation to count 7 that he pushed her on to the front seat of the car and held her down by the hair before anally raping her is consistent with that CCTV evidence of him later holding her by the hair back at his house. Her evidence has the ring of truth about it.
While the jury acquitted the appellant of the allegation of rape in count 9, there was a proper basis for the jury to find it had a reasonable doubt in relation to that count, without undermining the complainant’s evidence in relation to the other counts. It is understandable that the jury gave the appellant the benefit of the doubt in circumstances where the complainant initially failed to give an account of that act of non-consensual fellatio in the car. In those circumstances, there is no reason to doubt the reliability of the complainant’s evidence in relation to those counts for which the jury found him guilty. There is no reason to consider that the jury’s verdict would have been different if the judge had referred to the presence of the court companion when he gave the warning to the jury. The jury’s verdict would inevitably have been the same.
I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has occurred. The appellant was not denied a chance of acquittal that was fairly open to him. The failure to warn the jury in terms of s 13A(12) in relation to the presence of the court companion did not deprive him of a real likelihood of acquittal by the jury.[19] It would not be unfair, in the circumstances of this case, to apply the proviso.
[19] R v TN [2005] QCA 160 at [87], (2005) 153 A Crim R 129 at 147; Lane v The Queen [2018] HCA 28 at [54], (2018) 92 ALJR 689 at 698.
After examining the trial record, in the context of the issues the jury were required to decide in order to arrive at the verdicts of guilty, I have no doubt that the failure to give the warning in s 13A(12) in relation to the presence of the court companion during the complainant’s evidence would have had no significance in the jury’s determination of the verdicts of guilty. In the circumstances there is no reasonable possibility that the jury’s verdicts might have been different if the direction had been given. The Court may give very significant weight to the jury’s verdicts of guilty as an aspect of the trial record. While the jury had the advantage of having seen and heard the complainant and the appellant and other witnesses give their evidence at the trial there is no reason to consider that the absence of the warning in relation to the presence of the court companion during the complainant’s evidence would have affected their assessment of the whole of the evidence. The failure to give the direction required by s 13A(12) in relation to the presence of the court companion did not involve such a departure from the essential requirements of a fair trial as to preclude this Court from being satisfied that no substantial miscarriage of justice has occurred. The nature of the error in the circumstances of the case does not constitute a serious breach of the essential foundations of a criminal trial so as to preclude this Court from applying the proviso.
Finally, after examining the trial record, in the context of the issues the jury were directed to decide in order to arrive at verdicts of guilty, and upon making my own independent assessment of the evidence, giving significant weight to the jury’s verdicts of guilty and making due allowance for the natural limitations that exist in a case of an appellate court proceeding on the record, I am satisfied that the appellant was proved guilty beyond reasonable doubt of counts 1, 3, 4, 7, 8, 10, 11 and 12.
I would dismiss ground 1.
Ground 3: Allowing the witness V to be accompanied by his wife during the course of his evidence
V gave evidence via audio-visual link from Queensland. Prior to giving his evidence he confirmed that his wife was in the room with him. The judge directed V that: “she is not to take any part in any of these proceedings”. V’s wife was not visible to anyone in the courtroom while her husband gave evidence.
Section 13(6) and (7) of the Evidence Act provide:
(6) If a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the judge and jury (if any) while the witness is giving evidence and, if, in consequence of an order under this section, a party is prevented from seeing that person directly while the witness gives evidence, the court must ensure that the party is able to observe that person either—
(a) by direct transmission of images of the witness together with that person while the witness is giving evidence; or
(b) by the later replay of a recording of images of the witness together with that person made while the witness was giving evidence.
(7) If, in a criminal trial, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
The appellant submits that an error of law occurred by reason of the judge allowing V’s wife to accompany him while he gave evidence.
No application was made pursuant to s 13 of the Evidence Act for V’s wife to accompany him while he gave evidence for the purposes of providing emotional support. The appellant submits that this does not matter. He refers to the reasoning of Keane JA (as he then was) in Michael where he said:[20]
… the circumstances that the Crown Prosecutor did not seek a formal declaration that the complainant was a special witness in terms of s 21A of the Evidence Act, and that the learned trial judge did not make an explicit finding to that effect before allowing the complainant the benefit of a support person are quite beside the point. Under s 21A(2) a trial judge may act of his or her own motion to allow a special witness to have the benefit of a support person. Section 21A simply does not require that a declaration as to “special witness” status be formally sought or made. All that is necessary is that the accused should have sufficient notice of an intention to accord a witness the status of a “special witness” to enable the accused to present meaningful opposition to that course should the accused be so advised. That the provisions of s 21A may be invoked and applied without undue formality does not mean that the requirements of s 21A(8) can thereby be set at nought.
[20] [2008] QCA 33 at [32], (2008) 181 A Crim R 490 at 495.
I do not accept this submission. It proceeds from a false premise.
The condition precedent for the application of s 13(6) is that a witness is accompanied by a relative or friend for the purpose of providing emotional support. There is no evidence that V’s wife was present in the room from which he was giving evidence for the purposes of providing emotional support. That explains why no order was made by the judge pursuant to s 13(2)(e) concerning V's evidence.
The condition precedent for the application of s 13(7) is that, in a criminal trial, a court makes special arrangements for taking the evidence of a witness. The circumstances in which an order may be made for making special arrangements are explained by s 13(1) which provides:
Subject to this section, if—
(a) it is desirable to make special arrangements for taking evidence from a witness in a trial in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of the courtroom or for any other proper reason; and
(b) the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make the special arrangements; and
(c) the special arrangements can be made without prejudice to any party to the proceedings,
the court should, on its own initiative, order that special arrangements be made for taking the evidence of the witness.
In this case the Court did not order that special arrangements be made for taking V’s evidence. He was not giving evidence by CCTV in order to protect him from embarrassment or distress. His evidence concerned his dealings with the appellant in relation to illicit drugs, his observations of tasers in the custody of X and an occasion when he returned to the appellant’s house after his arrest and stole some items belonging to the appellant. He gave evidence by audio-visual link because he was resident in Queensland.
In these circumstances the application of s 13(6) and (7) was not invoked. No error of law has occurred. There was no irregularity in the conduct of the trial.
Further, the mere presence of his wife in the room from which V gave evidence did not give rise to a miscarriage of justice. The parties were aware of her presence. No objection was raised at the trial to her remaining in the room. There was no suggestion or indication that she influenced or attempted to influence her husband in the course of his evidence. There is no statutory prohibition on a person being present in a room when another person gives evidence by CCTV. In light of the direction of the trial judge that V’s wife was to take no part in the proceedings, there is no risk that the jury impermissibly reasoned that her presence was in some manner relevant to their assessment of V.
In any event, the evidence of V was uncontroversial. His evidence was referred to only briefly by counsel in their addresses and there was no challenge to his credibility. His evidence and the weight to be given to it was not in issue at the trial. Not only was there no risk of the jury reasoning improperly about his evidence by reason of the presence of his wife, there was no reason for the jury to engage in faulty reasoning when assessing the weight to give his evidence because there was no dispute about that evidence. In the circumstances in which his evidence on the material issue was not in dispute, no miscarriage of justice has occurred by reason of the presence of V’s wife in the room while he gave that evidence by closed circuit television.
I would dismiss ground 3.
Ground 4(c) and ground 4(d): Written directions
The appellant submits that the judge erred in two ways in providing written directions to the jury: first, because the written directions contained material extraneous to the jury’s deliberations, and second, because the written directions failed to tell the jury that the written directions were subordinate to the judge’s oral directions.
The appellant complains that the judge included the entirety of s 34N of the Evidence Act in his written directions to the jury. The appellant submits that consent was not in issue on the first two counts of rape, being counts 7 and 9 because he denied those acts of sexual intercourse. Accordingly, setting out the entirety of s 34N carried the risk that the jury misunderstood how they were to apply s 34N in coming to their verdict of guilty in relation to count 7.
Section 34N provides:
34N—Directions relating to consent in certain sexual cases
(1)In a trial of a charge of a sexual offence where a lack of consent of a person in relation to a particular sexual activity is in issue, the judge must direct the jury that the person is not to be regarded as having         consented to the sexual activity the subject of the charge merely because—
(a)     the person did not say or do anything to indicate that he or she did not freely and voluntarily agree to the sexual activity; or
(b)     the person did not protest to or physically resist the sexual activity; or
(c)     the person was not physically injured in the course of, or in connection with, the sexual activity; or
(d)     1 or more of the following circumstances apply:
(i)the person freely and voluntarily agreed to sexual activity of a different kind with the defendant;
(ii)the person had freely and voluntarily agreed to sexual activity (whether or not of the same kind) with the defendant on an earlier occasion;
(iii)the person had, on that or some other occasion, freely and    voluntarily agreed to sexual activity (whether or not of the same kind) with another person.
(2)The judge must, in a trial referred to in subsection (1), give each of the directions referred to in that subsection as may be applicable in the     circumstances of the particular case.
(3)In this section—
consent, in relation to a sexual activity, has the same meaning as in the Criminal Law Consolidation Act 1935;
sexual activity includes sexual intercourse (within the meaning of the Criminal Law Consolidation Act 1935).

In R v Dunn,[21] Bleby J, with whom Sulan and White JJ agreed, addressed the use of written directions in the following terms:[22]
[21] [2006] SASC 58, (2006) 94 SASR 177.
[22] [2006] SASC 58 at [36]-[42], (2006) 94 SASR 177 at 185-187.
The use of written directions as an aid to a judge’s oral summing up is now commonplace. It is particularly helpful where a direction on the law is complicated, such as a direction on self‑defence, or where there are a number of possible alternative verdicts to be considered by the jury. Although they are commonplace, appellate courts have stressed the limitations associated with their use. No court has held that they can be used as a substitute for oral directions. They are to be used in conjunction with and by way of supplement to oral directions.
Their use was first considered by this Court in R v Radford where King CJ said:
The right of a trial judge, in his discretion, to provide a jury with written directions to supplement his summing up, has been recognised and approved in the Supreme Court of Victoria, R v Hughes; R v Wilson; R v Zikovic. I see no reason to doubt the correctness of that view. It is a right which should, in my view, be exercised sparingly, and only where it appears to be necessary to meet the special needs of a particular case. I agree with the views expressed on this point in the cases cited above and also in the Court of Criminal Appeal of New South Wales in R v Petroff. Where a judge decides to make use of written directions, I think that they should be confined to setting out alternative verdicts which might be open to the jury and key directions on questions of law. The temptation to indulge in theoretical expositions of the law should be firmly resisted and the directions should be restricted to directions which directly relate to the facts and issues in the particular case. Juries consist of individuals of varying degrees of education and varying capacities to master the written word. They have no training in the law and the dangers of misunderstanding written expositions of the law are considerable. Generally speaking a clear oral explanation directly related to the facts and issues in the case is more suited to the needs of a jury than a document setting out the law. Nevertheless it is for the trial judge, not the appellate court, to decide how the directions should be given and, so long as there is no inaccuracy and no tendency to produce a miscarriage of justice, an appellate court will not interfere.
Courts have been at pains to point out the need for such written directions to be supplementary to and not in substitution for oral directions. In R v Petroff Nagle CJ at CL approved the use of a written direction on the footing that the jury “would have been under no misapprehension that the document was any addition to or in lieu of the oral directions that they had been given. In his directions his Honour was at pains to disabuse the jury of any such idea”. His Honour then cited with approval the following oral direction given by the trial Judge:
I should emphasise that you must not use that document as a substitute for the detailed oral directions I gave you yesterday. It is intended as no more than aide memoire which may assist you to recall the various steps which you must follow in arriving at a proper verdict on each of the charges in this trial. It was in no way intended to be a complete summary of all the matters of law to which I referred yesterday. As I told you yesterday you are bound to apply the principles of law upon which I directed you to the facts of the case as you eventually find them to be. That document will, I hope, refresh your recollection of the various options open to you but it must at all times be interpreted in the light of the directions of law I gave you yesterday.
In R v Bourke Williams JA said:
Whilst it is clearly desirable that some express words to the effect that the document is not to be used in substitution for oral directions should be used, the real question will always be whether the jury were left under a misapprehension that the document was in addition to or in lieu of oral directions.
In a case such as the present, the words of Lush J in R v Hughes are apposite:
It is not the function of an appellate court to dictate to a trial judge what method he must use for communicating the necessary consequences of a construction of the evidence to the jury. It is its function to be vigilant to see that the jury is placed, finally, in a position in which it understands the decisions it must take and the verdicts which emerge from those decisions.
As the authorities to which I have referred show, it is a matter for the trial Judge to decide how directions to a jury should be given. Judges are becoming increasingly aware of the benefit of written and technological aids in effective communication of their message to juries. I would not wish to discourage the wise and sensitive use of such aids. It may be that for a particular direction of some complexity a trial Judge will wish to rely solely on the words written in an aide-memoire without further elaboration. However, it would be an error merely to hand the written direction to the jury without more, without reading and perhaps repeating the words written down.
One cannot assume, even in our relatively well educated society, that all jurors are literate, and judges should ever be alive to the reaction of members of the jury to a difficult direction and to the possible need of further explanation or repetition of it. More importantly, however, when a direction on the law of the nature of that in question is given, it is incumbent on the Judge to ensure that the jury understands how that direction on the law relates to the facts, and to identify the evidence that is relevant to the application of that particular direction. That cannot be done merely by supplying the jury with a particular set of words comprising a direction on the law without relating that to the facts.
[Footnotes omitted.]
Subsequently, in R v Tulisi,[23] Duggan J, with whom Vanstone and David JJ agreed, said:[24]
As the complexity of directions in modern criminal trials has increased, the practice has developed of providing written directions to juries as aide‑mémoires to assist the jurors in recalling oral directions. No criticism can be made of this helpful practice which is often regarded as a necessity. The practice is frequently used to provide summaries of the elements of offences and an explanation of relevant defences.
[23] [2008] SASC 306.
[24] [2008] SASC 306 at [54].
Written directions are not a substitute for the oral directions a judge is required to give. They are an aide-memoir which may assist the jury to recall the various steps which they might follow in arriving at a proper verdict.[25] It is important that confusion is avoided by ensuring that the written directions are consistent with the judge’s oral directions.[26]
[25] R v Burns [2009] SASC 105 at [20], (2009) 103 SASR 514 at 522.
[26] R v Burns [2009] SASC 105 at [26], (2009) 103 SASR 514 at 524.
In this case, the judge explained the purpose of these written directions and the use that the jury could make of them, as well as their limitations. A judge is not required to direct the jury that written directions are subordinate to oral directions. The discussion in Dunn indicates that, in certain circumstances, the absence of such direction could conceivably constitute a miscarriage of justice if there are unexplained inconsistences between written directions and oral directions. However, that is not this case.
The judge during the summing up directed the jury that the written directions had to be amended by deletion and supplemented by a further direction. In these circumstances, the jury could only have understood the written directions to be subordinate to the oral directions when the whole of the summing up is considered. I accept the respondent’s submission that the absence of the specific direction that the written directions are subordinate to the oral directions did not cause a miscarriage of justice.
Further, in my view, the inclusion in the written direction of the entirety of s 34N of the Evidence Act did not cause a miscarriage of justice. A miscarriage of justice could only have been caused if it is reasonably possible that the inclusion of the entirety of s 34N confused the jury and distracted them from their proper task so that this Court can be satisfied that it may have affected the verdict.[27] That contention ignores the whole of the direction.
[27] Dhanhoa v The Queen [2003] HCA 40 at [49], (2003) 217 CLR 1 at 15.
While in some circumstances an irrelevant or unnecessary direction might have the effect of confusing a jury, there is no reason to consider such a risk exists in this case. In his summing up, the judge read all of s 34N to the jury. The judge directed the jury that s 34N applies to a trial of a charge of sexual offence where a lack of consent is in issue. Accordingly, the jury could only have understood the direction as relating to those circumstances they had to consider in which there was an issue whether the complainant had consented to sexual activity. There was no risk that the jury could have been confused so as to think that s 34N had any role to play in consideration of any charge of rape where consent was not in issue. A jury would not have been distracted from their task by being given information as to circumstances which, of themselves, should not be assumed to constitute consent. Consent was in issue on the charge of rape in counts 11 and 12. While the appellant denied the acts of sexual intercourse occurred in counts 7 and 9, referring the jury to s 34N where it was clearly relevant to some counts did not risk confusing the jury in relation to those counts where the question of consent was not in issue.
In any event, when consent or a lack thereof is in issue, providing a jury with all the examples in s 34N is more likely to allow the jury to better understand what is meant by consent. The more examples that are given, the greater the opportunity for the jury to understand their concept.
Accordingly, at its highest, if parts of s 34N were irrelevant to the facts of this case, reference by the judge to the entirety of s 34N was, in part, superfluous. For the reasons given above, that did not occasion a miscarriage of justice. However, I consider s 34N in its entirety did apply to the facts of this case. The complainant did not say she said: “no” in relation to each rape (s 34N(a)). The complainant did not protest or resist for the whole period of the rapes (s 34N(b)). While the complainant was injured, those injuries were inflicted at different times and not during the rapes (s 34N(c)). The appellant gave evidence he had consensual anal and oral sexual intercourse with the complainant while she was at the house and there was evidence she previously had consensual sexual intercourse with the appellant and X (s 34N(d)). Accordingly, no miscarriage of justice has occurred.
I would dismiss ground 4(c) and ground 4(d).
Ground 5: The judge impermissibly questioned the appellant in a manner capable of conveying to the jury doubt as to the veracity of his evidence
In R v T, WA,[28] Kourakis CJ with whom Vanstone and Anderson JJ agreed, approved the identification of the three grounds on which judicial intervention may result in a quashing of a conviction in a criminal trial by Lord Brown, giving the advice of the Privy Council in Michel v The Queen.[29] They are:
1telling the jury in unduly strong terms how they should evaluate the evidence;
2interventions which prevent defence counsel from properly presenting the defence case; and
3preventing the defendant from doing himself justice in the giving of his evidence.
[28] [2014] SASCFC 3, (2014) 118 SASR 382.
[29] [2010] 1 WLR 879.
Lord Brown later identified the following as a separate ground on which excessive judicial intervention might result in a miscarriage:[30]
To that admirable analysis the Board would add that not merely is the accused in such a case deprived of “the opportunity of having his evidence considered by the jury in the way that he was entitled”. He is denied too the basic right underlying the adversarial system of trial, ... by jury ...: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.
[30] [2010] 1 WLR 879 at [31].
In R v Mohammadi,[31] in the joint judgment of Gray and Sulan JJ, their Honours summarised the authorities relating to judicial interference in a jury trial as follows:[32]
[31] [2011] SASCFC 154, (2011) 112 SASR 17.
[32] [2011] SASCFC 154 at [24]-[25], (2011) 112 SASR 17 at 22-23.
Many authorities have discussed the approach taken to suggested undue interference by judges in the course of criminal trials. A number of those observations can be conveniently summarised as follows:
-The role of a judge in a trial is to ensure the propriety and fairness of the trial and to instruct the jury as to the relevant law. The judge is to take no part in the contest between the prosecution and the accused.
-Excessive interference or involvement by a judge during the trial may constitute such a departure from the due and orderly processes of a fair trial as to result in a miscarriage of justice.
-Departure from the due and orderly processes of a fair trial may infringe the principle that criminal justice must not only be done but must also appear to be done.
-To determine whether a judge has inappropriately intervened, one must ask whether the judge’s intervention has created a real danger that the trial was unfair. To decide this, the appellate court must consider whether the judge’s interventions “indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and ‘into the perils of self-persuasion’”.
-When deciding whether the judicial intervention has reached the point of unfairness, one must look to the number, length, terms and circumstances of the interventions and must consider the interventions in the context of the trial as a whole. The point at which the intervention occurs is also relevant.
-Active participation of a judge in the conduct of cases has become more common. However, the judge is under more stringent requirements in respect of the conduct of criminal trials, particularly those with a jury. Greater latitude of intervention by a judge through questioning and comment will be accepted when a judge is sitting alone without a jury.
...
In this Court in Macbeth, Doyle CJ speaking for the Court summarised the position as follows:
The issue is whether the conduct of the Judge has given rise to a miscarriage of justice.
A trial Judge is entitled to question witnesses to clear up matters that are unclear, or might be unclear to the jury, or to satisfy the Judge on a matter that concerns the Judge. There might be other reasons for asking questions. Nevertheless, it is the role of counsel to present the evidence to the jury, and a trial Judge’s role in questioning witnesses is limited by that context. The Judge should not take the case (for the prosecution or for the defence) out of the hands of counsel. A judge should not get involved in questioning to such an extent that counsel, and in particular defence counsel, cannot fairly expose their case to the jury. ... Nor should a judge ask questions in a manner or to such an extent that might suggest to the jury that the judge is partisan, or has a definite view about the evidence of a witness. But even then, judicial intervention needs to be assessed in the context of the case as a whole. A judge’s questions might indicate or expose disbelief of something that is patently incredible, or might relate to something that has already been exposed as incredible. Finally, a judge must take care that in asking questions the judge does not identify the judge with the case of either party. There is a helpful discussion of the relevant guidelines in the reasons of Wood CJ at CL in R v Esposito (1998) 45 NSWLR 442 at 468-473.
In short, the complaint about the judge’s questions has to be considered in the context of the role of counsel and of a judge in a jury trial, and paying appropriate regard to principles of the kind outlined in Esposito. At the same time, one must recognise that consistently with those principles there is scope for variation of approach, from judge to judge and from case to case. The principles are important, but in the end the ultimate question is whether the conduct of the judge has, in a manner that can be identified or explained in words, made the trial unfair, thus giving rise to a miscarriage of justice.
[Footnotes omitted.]
A judge must be careful when cross-examining a witness that, if the questioning is too persistent, the credibility and reliability of the witness may be damaged in the minds of the jury. In Cook v The Queen,[33] the Victorian Court of Appeal addressed this matter as follows:[34]
[33] [2016] VSCA 174, (2016) 260 A Crim R 454
[34] [2016] VSCA 174 at [37]-[38], (2016) 260 A Crim R 454 at 465-466.
There can be no counsel of perfection in respect of the extent to which a trial judge may intervene in the questioning of witnesses. While there are dangers in doing so, at the same time there are situations where it cannot be avoided. The following observations of the English Court of Appeal in R v Sharp are apposite:
When a judge intervenes in the course of examination, or particularly cross-examination, a number of problems can arise depending on the frequency and manner of the interruptions. First the judge may be in danger of seeming to enter the arena in the sense that he may appear partial to one side or the other. This may arise from the hostile tone of questioning or implied criticism of counsel who is conducting the examination or cross-examination, or if the judge is impressed by a witness, perhaps suggesting excuses or explanations for a witness’s conduct which is open to attack by counsel for the opposite party. Quite apart from this, frequent interruptions may so disrupt the thread of cross-examination that counsel’s task may be seriously hampered. In a case of any complexity cross-examination of the principal witnesses is something that calls for careful preparation and planning. It is the most important part of the advocate’s art, because a competent cross-examination is designed to weaken or destroy the opponent’s case and to gain support for the client’s case. But it is easier said than done. If the judge intervenes at a crucial point where the witness is being constrained to make an important admission, it can have an adverse effect on the trial.
In general, when a cross-examination is being conducted by competent counsel a judge should not intervene, save to clarify matters he does not understand or thinks the jury may not understand. If he wishes to ask questions about matters that have not been touched upon it is generally better to wait until the end of the examination or cross-examination. This is no doubt a counsel of perfection and a judge should not be criticised for occasional transgressions; still less can it be said in such cases that there is an irregularity in the conduct of the trial or that the verdict is unsafe or unsatisfactory. But there may come a time, depending on the nature and frequency of the interruptions that a reviewing court is of the opinion that defence counsel was so hampered in the way he properly wished to conduct the cross-examination that the judge’s conduct amounts to a material irregularity.
The New South Wales Court of Criminal Appeal in Lars helpfully outlined the considerations which should guide a trial judge in intervening in the examination of witnesses, as follows:
It should be said at once that a trial judge is entitled to intervene in the questioning of a witness (whether in examination in chief, in cross-examination or in re‑examination) notwithstanding the absence of objection by counsel for any other party if there is good reason for such intervention. The power to do so should be exercised with circumspection because of the obvious tendency of such interventions to do just what is complained of here, namely to disrupt the flow of the examination or cross-examination and to impede the placing, by counsel, of his or her client’s case before the court. The power should rarely be exercised merely because it appears to the judge that the question calls for an answer which is irrelevant or is otherwise inadmissible. In such circumstances, the better course will usually be to remain silent in the absence of objection, because it may well be the case that the other parties are content to have before the court the material which the question will elicit, either because they will themselves make use of it for a purpose which may not readily be apparent to the judge or because to adduce the evidence in that manner and at that time may obviate the need to call another witness to prove the matter strictly or may otherwise facilitate the smooth presentation of the evidence. The judge should in general assume that counsel for the other parties are familiar with their briefs, familiar with the issues, and competent themselves to judge whether the interests of the party they represent require that objection be taken.
There is a qualification to what we have just said, namely that the judge has a responsibility (particularly acute in these days of heavy caseloads and inadequate judicial resources) to ensure that every trial is contained within reasonable limits and is not unduly prolonged by irrelevant cross-examination. It follows that the judge may properly interrupt counsel to inquire as to the relevance of the particular question or the particular line of cross-examination which is sought to be pursued. In general, having raised the question with counsel the judge should be content to accept counsel’s assurance that the matter is relevant; but if the judge has a real concern about it, it may be appropriate for him or her to press counsel for a full explanation. In general, if that is to be done, it should be done in the absence of the witness and, in the case of a jury trial, in the absence of the jury. That circumstance in itself dictates that the judge should be slow to make such a requirement, because the time entailed in an investigation of the matter may turn out to be more than the time which would have been used had counsel been allowed to pursue the matter without interruption.
The power of the judge to reject a question in the absence of objection should also be exercised with circumspection. It would be appropriate to do so where the question is offensive or otherwise obviously calculated to do no more than unfairly prejudice the witness (or the party who has called that witness) in the eyes of the jury, or where the form of the question is such that it involves unfairness to the witness (which other counsel may not have detected) or is likely, whether because of latent or patent ambiguity or for any other reason, to elicit an answer which would be misleading. Another obvious instance would be where the asking of the question represents a flouting of some earlier ruling on admissibility of evidence of a particular subject matter. We do not purport to suggest that that is an exhaustive statement of the circumstances in which the judge would be justified in rejecting a question without objection. There may well be others. What is clear is that the circumstances in which a judge should reject a question without objection are obviously limited and the decision whether or not to intervene must always be taken by the trial judge with due regard to the undesirability of an interruption to the flow of cross-examination and above all and especially in a jury trial with regard to the undesirability of interventions which may give the appearance that the judge has descended into the arena and aligned himself with one or other of the combatants.
It is also worth remarking that a judge who (except in the case of an offensive or ambiguous and potentially misleading question) rejects a question in the absence of any objection from counsel runs the risk of falling into error and of excluding evidence which ought properly to have been admitted. The task of any judge conducting any trial is not an easy one however much it may superficially appear to do so. In a very real sense not only is a judge entitled to expect proper assistance from counsel in carrying out that task, but he or she is also to a degree dependent on such assistance and (not only in the interests of justice but in his or her own interest) a judge should not too readily discount the value of that assistance nor so act as to be deprived of it.
[Footnotes omitted.]

The appellant submits that the judge ought to have approached the sentencing task by applying substantial concurrency, not just between individual offences, but between the groups of offences. Further, this submission impliedly criticises the judge’s approach in not reducing the overall sentence in accordance with the totality principle.
The factors to be considered in determining whether a sentence is manifestly excessive are the maximum sentence prescribed by law; the standards of sentencing customarily observed for offences of the kind in question; the seriousness of the offences committed when compared with other examples of the offence in question; and the personal circumstances of the offender.[41] Where an appeal court identifies an error of manifest excess, the court will fix a sentence it determines ought to have been imposed.[42]
[41] R v Morse (1979) 23 SASR 98 at 99.
[42] R v Kreutzer [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
In respect of counts 1 to 3, the maximum penalties applicable are 25 years imprisonment for aggravated kidnapping; 10 years imprisonment for threatening life; and three years imprisonment for aggravated assault.
In respect of counts 4 to 7, the maximum penalties applicable are 13 years imprisonment for aggravated causing harm with intent to cause harm; three years imprisonment for aggravated assault; and life imprisonment for rape.
In respect of counts 8, 10, 11 and 12, the maximum penalties applicable are 13 years imprisonment for aggravated causing harm with intent to cause harm; life imprisonment for rape; and, in respect of false imprisonment, the maximum penalty is at large.[43]
[43] R v Walkuski [2010] SASC 146 at [15] and [82]; R v Knott [2007] SASC 74 at [3], (2007) 169 A Crim R 291 at 292.
This was appalling offending. It was premeditated, cruel and egregious. It involved the infliction of severe pain, the terrorising of the victim and her degradation and humiliation. The offending was motivated by a desire for revenge. The offending called for condign punishment. The judge was correct in recognising that considerations of general and specific deterrence loomed large in the sentencing process.
The judge recognised that a degree of concurrency was warranted. There was scope for the judge to adopt an approach of partial concurrency in sentencing the appellant in relation to a group of offences which was separated by time and place from the other two groups. In R v Copeland (No 2),[44] Kourakis J (as he then was) considered the principles applicable to the question of when sentences for separate offending can be made concurrent. After referring to the frequently cited judgment in Attorney-General (SA) v Tichy,[45] where Wells J set out the competing considerations relevant to the imposition of either concurrent or cumulative sentences, Kourakis J set out three reasons why similar and proximate offending committed to further a single criminal plan warranted, at least to some extent, concurrent sentences. Those three reasons are:[46]
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms.
Secondly, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.
Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.
[44] [2010] SASCFC 61, (2010) 108 SASR 398.
[45] (1982) 30 SASR 84 at 92-93.
[46] (2010) 108 SASR 398 at 425-426.
There is no error in the approach that the judge took to the accumulation and concurrency of the sentences to be imposed. Each change in location afforded the appellant the opportunity to reflect upon his conduct and to choose to desist. He did not. That justified making the sentences imposed pursuant to s 18A for each group cumulative. It was open to the judge to treat each group of offences as a separate part of a wider but continuing course of conduct, to sentence for each group and accumulate as he did. It cannot be said that the failure to make the group sentences concurrent resulted in a sentence which was so plainly unjust or unreasonable that intervention by the appellate court is warranted. On the contrary, to have done so would have resulted in a doubling up on the benefit of concurrency already received by the use of s 18A in each group sentence.
In my view, there can be no criticism of the sentences imposed in respect of each group, having regard to the relevant factors the judge had to weigh in the exercise of the sentencing discretion.
I turn to the question of totality. In R v E, AD,[47] Doyle CJ, with whom Debelle and Besanko JJ agreed, explained the application of the principle of totality in the following terms:[48]
The concept of totality will usually have little part to play when a sentence is imposed in exercise of the powers conferred by s 18A of the Sentencing Act. If the sentencing judge arrives at a sentence, without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate: see R v Major. No further reduction under the totality principle would usually be called for: see R v Bennett Doyle CJ; R v B, RWK. That is not to say that the principle of totality never requires consideration in such a case. Ordinarily one would not expect it to require separate consideration.
The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that “the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”: Postiglione v The Queen. The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so “crushing” as to call for some reduction in the aggregate: see King CJ in R v Rossi, cited by McHugh J in Postiglione at 308. I refer also to the remarks of Kirby J on this point in Postiglione at 340-341. As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
In recent times there has been at tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
[Footnotes omitted].
[47] [2005] SASC 332, (2005) 93 SASR 20.
[48] [2005] SASC 332 at [36]-[38], (2005) 93 SASR 20 at 29-30.
In my view, there was no error in the judge declining to reduce the head sentence in accordance with the totality principle. As Doyle CJ observed, it has little part to play when a sentence is imposed in accordance with s 18A. Further, as he observed, for a particularly serious crime a sentence that is crushing in its effect must be imposed. The use of that term does not imply that, when a very heavy sentence is called for, it is appropriate for the Court to reduce it simply because, to the offender, the sentence may be crushing. At the end of the day, if that is what is called for, that is the sentence that must be imposed. As far as the head sentence is concerned, this is such a case.
For these reasons I do not consider the head sentence of twenty years to be manifestly excessive. I turn to consider the complaint concerning the non-parole period.
The principles applicable to the fixing of a non-parole period were explained by this Court in R v Roberts,[49] where the Court said:[50]
[49] [2016] SASCFC 41, (2016) 125 SASR 40.
[50] [2016] SASCFC 41 at [17]-[22], (2016) 125 SASR 40 at 44-45.
In R v Creed, King CJ, with whom Cox and Olsson JJ agreed, said:
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 both to 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.
In R v Stewart, King CJ said:
Having considered what is the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment I must then consider whether parole is appropriate on other grounds. That involves a consideration of the likelihood of the applicant responding to parole. I must consider what prospects there are of his rehabilitation by means of parole and what prospects there are of his observing the terms of parole, responding to it and leading a good and useful life in consequence.
In R v Winters, Doyle CJ, with whom Matheson and Olsson JJ agreed, considered the observations of King CJ in Stewart. The Chief Justice said:
I do not suggest that what King CJ there said is exhaustive of the matters that require consideration. However, as I have already said, these passages conveniently summarise the approach to be taken.
It is clear from what his Honour said, that in fixing a non-parole period the Court must continue to bear in mind and give appropriate weight to the purposes for which punishment is imposed. That was recognised by the High Court in Power v The Queen and more recently affirmed by the High Court in Bugmy v The Queen. As was said by Mason CJ and McHugh J (at 531):
“... It follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.”
This is so, even though the purpose of the parole system is directed towards rehabilitation: The Queen v Shrestha at 69.
The fixing of a non-parole period serves a different function from the setting of a head sentence. In R v Miller, Doyle CJ observed that, in accordance with what was said by the High Court in R v Shrestha, in fixing a non-parole period it is appropriate to give greater weight to rehabilitation than would be the case in fixing the head sentence. This recognises the different purpose to be served by the fixing of a non-parole period as against a head sentence and the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.
The purpose of fixing a non-parole period is to determine the optimum time when the prisoner will respond to parole and make the most of the opportunity it allows for rehabilitation after serving the minimum period necessary to meet the punitive and protective purposes of punishment. It is for that reason that relatively more weight is given to rehabilitation in fixing the non-parole period. The starting point for fixing a non-parole period is the length of the head sentence. It is a different discretionary exercise to fixing the head sentence, notwithstanding that it is informed largely by the same considerations. Nonetheless the discretion demands a balancing of competing sentencing objectives.
In R v Palmer, Kourakis CJ said:
The need for punishment and protection will generally result in non-parole periods of between one half and three quarters of the head sentence. Where in that range, or in special cases where outside that range, the non-parole period is fixed will depend on a realistic balancing of positive and negative indications of the offender’s prospects of rehabilitation…The safer course is to fix a lower or higher proportion by reference to the usual range depending on whether the offender has relatively poor or good indications for rehabilitation. That assessment must be based largely on factors like the offender’s antecedents, previous responses to community corrections orders, degree of contrition and demonstrated willingness and capacity to overcome criminogenic factors.
[Footnotes omitted.]
As the respondent acknowledges, the non-parole period fixed by the judge is a high proportion of the head sentence. Nonetheless, it is within the general range for fixing of a non-parole period, albeit at the upper end. In my view, that is justified. The offending was at the upper end of the range of seriousness for offences of their type. It is not a question of whether I would have fixed the non‑parole period that the judge fixed. The question is whether it is outside the range of sentences open on the factors relevant to fixing a non-parole period as set out above. While the appellant’s antecedents and personal circumstances did not provide a reason for the fixing of a lengthy non-parole period, considerations of the punitive and protective purposes of punishment, together with the lack of real insight and remorse on the part of the appellant and the problematic prospects for rehabilitation, persuade me that the intervention of the Court on appeal is not warranted.
For these reasons I do not consider the non-parole period is manifestly excessive.
The sentence is not manifestly excessive.
I would dismiss ground 1.
Ground 2: Failure to nominate a starting point for any individual or group of offences
The appellant submits the judge erred in his approach to sentencing in failing to identify the starting point for each individual offence notwithstanding his use of s 18A. He submits it would not have been difficult to do so.
When utilising s 18A, it is desirable to set out the starting point for the sentences on each offence. However, it is not an error of law to proceed to use s 18A without doing so. In R v Copeland (No 2),[51] Kourakis J (as he then was) said:[52]
... There is obvious utility in explaining how a single sentence imposed pursuant to s 18A of the CLSA is arrived at by reference to the individual sentences which would otherwise have been imposed for a series of offences. The offender, and the community on whose behalf the prosecution is brought, have a real interest in knowing how the criminality, of each of the individual offences, was evaluated and the relative contribution each made to the ultimate sentence. That interest is not as acute, and the practicality of differentiating between offences is more difficult, in the case of multiple charges arising out of a single criminal episode.
On the present state of the authorities, notwithstanding the public utility in disclosing the individual sentences which would have been imposed, a failure to do so when a single sentence is fixed pursuant to s 18A CLSA is not, in itself, an error of law. Even though it is a good rule of practice to do so, it is neither universally, nor in particular classes of cases, a legal requirement.
[Footnotes omitted.]
[51] [2010] SASCFC 61, (2010) 108 SASR 398.
[52] [2010] SASCFC 61 at [93]-[94], (2010) 108 SASR 398 at 422-423.
This case did not require identification of individual sentences in the terms now sought. In the context of the judge’s reasons as a whole, the sentencing remarks adequately explain how the judge fixed the sentences pursuant to s 18A in respect of the three groups of offences. The use of s 18A and the application of the principle of concurrency rendered pointless the exercise of identifying a starting point for any individual or group offence.
I would dismiss ground 2.
Grounds 3 and 4: Error in application of s 10C
The appellant submits the judge erred in two ways in sentencing having regard to the provisions of s 10C of the Sentencing Act. The judge failed to identify whether any discount had been given for the appellant’s guilty pleas to counts 2, 5 and 6. The judge also failed to provide any reason for not giving the full 10 per cent discount for those pleas.
Pursuant to s 10C(2)(f) of the Sentencing Act, the judge had power, if he was satisfied there was good reason to do so, to reduce the sentence that he would otherwise have imposed by 10 per cent for the sentences in respect of counts 2, 5 and 6. While the Court retains a discretion to allow less than the full discount in a particular case, in the ordinary course the full discount should be afforded to an offender. If the Court is not disposed to do so, then it is incumbent upon it to provide adequate reasons for the departure from the maximum allowed.[53]
[53] R v Dwyer [2015] SASCFC 12 at [35], (2015) 121 SASR 587 at 598.
In his sentencing remarks, the judge did not expressly state what, if any, discount he applied in relation to counts 2, 5 and 6. He identified the maximum available discount. He remarked on the limited utility of the plea in the circumstances of this case and the futility of seeking to defend counts 5 and 6, given the evidence of the recordings made by the appellant.
Clearly, the judge was aware of the availability of a discount. It is possible that he chose not to grant the appellant any discount for the pleas of guilty in relation to these counts. If so, he was obliged to provide reasons for his exercise of the sentencing discretion in that way. In the alternative, it is possible that the judge applied the maximum discount of 10 per cent, or some lesser discount, which was subsumed in the fixing of the sentence pursuant to s 18A. That hypothesis finds some support in the submissions of the appellant’s counsel during sentencing submissions.
Unfortunately, the judge’s reasons in this respect are opaque. It is not possible for this Court to know which approach was adopted. If the Court was to proceed on the former possibility, it must conclude that the judge erred in failing to explain why he did not afford the appellant the full discount. This vitiates the exercise of the sentencing discretion.[54] However, this is a process error. In this instance, I would refrain from interfering with the sentence, as I consider the sentence is appropriate, notwithstanding the error the appellant submits occurred. I am satisfied that, if the error did occur and this Court is required to re-exercise the sentencing discretion, I would not impose a lower sentence.[55] If the Court proceeds on the latter possibility there is no error.
[54] R v Wakefield [2015] SASCFC 10 at [46], (2015) 121 SASR 569 at 581.
[55] R v Kentwell [2014] HCA 37 at [43], (2014) 252 CLR 601 at 618-619; R v Horstmann [2010] SASC 103 at [38].

For these reasons I would dismiss grounds 3 and 4.
Ground 5: Failing to identify how any concurrency of sentences was applied
The appellant submits that the judge made two errors. First, the judge erred in failing to identify how any concurrency was applied within each of the three groups of offences. Second, the judge erred in failing to make each of the sentences imposed for those three groups concurrent with each other. The appellant submits the judge should have done so because all of the offences for which the appellant was sentenced were part of the same course of conduct.
In R v Standley,[56] Blue J, with whom Kelly and Doyle JJ agreed, identified two rationales for making sentences either wholly or partially concurrent. The first rationale is to avoid double jeopardy in sentencing where there is an overlap between the elements of two offences committed by engaging in a single criminal activity. That is not the case here. The second rationale is the principle that the punishment should be proportionate to the crimes in circumstances where a defendant engages in a course of criminal conduct involving the repeated commission of multiple crimes of the same nature, or merely accumulating individual sentences for individual crimes would result in a total sentence that is disproportionate to the total offending.[57]
[56] [2016] SASCFC 141.
[57] [2016] SASCFC 141 at [42]-[44].
There is no error in the approach of the judge. While it is desirable to set out in sentencing remarks the broad approach taken by the judge to accumulation or concurrency,[58] there is no legal requirement to do so. The judge explained how he was applying the principle of concurrency to the offending. For the reasons I have explained earlier, the judge was entitled to adopt the approach he did. Further, there was no error in the judge declining to make each discrete group of offences concurrent.
[58] R v Copeland (No 2) [2010] SASCFC 61 at [92], (2010) 108 SASR 398 at 422.
In this case, the judge explained adequately the basis of his approach to structuring the sentence imposed, including his broad approach to accumulation and concurrency. For the reasons previously explained, there was no obligation on the judge to make concurrent any of the sentences for the three groups of offences in respect of which he utilised s 18A. On the contrary, to have done so would have resulted in a failure to fulfil properly the underlying purposes of sentencing in the particular circumstances of this case.
I would dismiss ground 5.
Conclusion
I would grant permission to appeal the conviction on ground 5, but dismiss the appeals against conviction and sentence.