R v Taheri - [2017] SASCFC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TAHERI
[2017] SASCFC 115
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
8 September 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
Appeal against sentence of imprisonment of five years with a non-parole period of two years imposed for one count of aggravated serious criminal trespass in a place of residence, two counts of aggravated threatening harm and one count of aggravated threatening life. The offences were committed against the former wife of the appellant and her sister. The appellant came to Australia from Iran as a refugee in 2011 and is resident in Australia as the holder of a visa.
The appellant relies on a number of grounds of appeal. The appellant contends that: (1) the Judge, when declining to make a home detention order pursuant to section 33BB of the Criminal Law (Sentencing) Act 1988, erred in failing to make a finding as to the risk, if any, that the appellant posed to community safety; (2) the Judge erred in her treatment of a written reference provided on behalf of the appellant; (3) the Judge should have ordered full or nearly full concurrency as between the sentences for counts 1 to 3 and count 4; (4) the Judge failed to have regard to the risk of deportation in the event that a sentence of imprisonment longer than 12 months were to be imposed.
Held per Nicholson J (Kourakis CJ and Peek J agreeing), dismissing the appeal:
1. Section 33BB does not require a sentencing judge to make a specific finding as to the nature or level of risk to the safety of the community that a particular offender might represent. What section 33BB(3) requires is that when determining whether to make a home detention order, a paramount consideration of the court must be the safety of the community.
2. There was no material error in the approach adopted by the Judge as to section 33BB and the discretion not to make a home detention order was within the discretion available.
3. It was open to the Judge to arrive at the view she took with respect to the written reference and to discount the reference accordingly.
4. The amount of concurrency ordered by the Judge was within the available discretion.
5. On the assumption that the risk of deportation, and the hardship that such a prospect would visit on both the appellant and his parents, were considerations relevant to the sentencing considerations in section 10(1) of the Criminal Law (Sentencing) Act 1988, the sentencing Judge took into account these matters.
Criminal Law Consolidation Act 1935 s 19, s 170; Criminal Law (Sentencing) Act 1988 s 10, s 33BB, s 38; Migration Act 1958 (Cth) s 501, referred to.
House v The King [1936] HCA 40; (1936) 55 CLR 499; R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144; R v Hosking [2017] SASCFC 50; R v Filipponi [2016] SASCFC 148; (2016) 126 SASR 464; R v Leka [2017] SASCFC 77; R v Wheeler [2015] SASCFC 83; R v Dell; R v Dell [2016] SASCFC 156; (2016) 126 SASR 571, considered.

R v TAHERI
[2017] SASCFC 115
Court of Criminal Appeal: Kourakis CJ, Peek and Nicholson JJ
KOURAKIS CJ.

I would dismiss the appeal for the reasons given by Nicholson J.
PEEK J.
I would dismiss the appeal. I agree with the orders proposed by Nicholson J and with his reasons.
NICHOLSON J.
Introduction
On 18 April 2017, having been found guilty of four offences following a trial before a jury,[1] the appellant was sentenced to imprisonment for five years with a non-parole period of two years. The offences he committed were: aggravated serious criminal trespass in a place of residence (count 1);[2] two counts of aggravated threatening harm (counts 2 and 4);[3] and aggravated threatening life (count 3).[4]
[1] An appeal against conviction was dismissed, R v Taheri [2017] SASCFC 92.
[2] Contrary to section 170 of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for life.
[3] Contrary to section 19(2) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for seven years.
[4] Contrary to section 19(1) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for 12 years.
The victim in counts 1 to 3 was the appellant’s then wife from whom he was separated (referred to in the Judge’s sentencing remarks as RB). The victim in count 4 was RB’s sister.
The sentence was structured in the following manner. In relation to counts 1 to 3 a term of imprisonment for five years was imposed[5] and in relation to count 4 a term of imprisonment for 18 months was imposed. However, the Judge ordered that one year of the latter sentence was to be served concurrently with the former sentence giving rise to a total period of imprisonment of five and a half years. A non-parole period of two and a half years was fixed. These two periods were both reduced by six months on account of time previously spent in custody and on home detention bail resulting in a total period of imprisonment of five years with a non-parole period of two years.
[5] The single penalty was arrived at in reliance on the discretion available under section 18A of the Criminal Law (Sentencing) Act 1988.
The Judge declined to exercise the discretion available under section 38 of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) to suspend the term of imprisonment upon the appellant entering into a bond to be of good behaviour (section 38 suspension) and also declined to order that the sentence be served on home detention conditions pursuant to the discretion available under section 33BB of the Sentencing Act (home detention order).
The appellant relies upon the following grounds of appeal:
(i)The Judge failed to have regard to the statutory criteria in section 33BB of the Sentencing Act when declining to order that the appellant serve the sentence on home detention (ground 1(a)).
(ii)The Judge erred in the approach adopted with respect to concurrency as between the individual sentences respectively imposed for counts 1 to 3 on the one hand and count 4 on the other (ground 1(c)).
(iii)The Judge erred in her treatment of the written reference provided on behalf of the appellant by a Mr Said Habibi (ground 1(e)).
(iv)The Judge erred in failing to have regard to the risk of deportation in the event that the appellant were to be sentenced to an immediate term of imprisonment greater than 12 months (ground 1(f)).
The appellant at paragraph 3 of his written outline of argument has stated that a number of the grounds set out in the notice of appeal, including 1(c), were no longer pressed on the appeal. Further, later in the written outline ground 1(b) is referred to in the context of the submissions dealing with the complaint about concurrency. However, ground 1(b) raised a complaint that the Judge had “failed to make any or any adequate findings as to the circumstances in which count 3 was committed”. No submissions were pressed either in writing or orally with respect to this ground 1(b) and, accordingly, I have approached the appeal on the basis that ground 1(c) has not been abandoned but ground 1(b) has. In any event, there is no substance to any complaint such as that in 1(b) were it to be pressed. Her Honour in the sentencing remarks observed, relevant to count 3 (threatening life):
You broke in through a window. You had a big knife and cut through the flyscreen. You had a rope in your hand and you were threatening towards your ex-wife. You wanted her to take back the report that she had made to the police but she was not going to do that. You pushed her into the bedroom, saying that you would kill her. ... Eventually you threatened her and put a rope around her neck and pulled on it. She said in evidence she had difficulty breathing.
Following a concession by the Crown, a Judge of this Court granted permission to appeal on grounds 1(a), (c) and (e). However, the question of permission with respect to ground 1(f) was referred to the Court of Criminal Appeal to be considered in conjunction with the appeal itself. For the reasons that follow, I would grant permission to appeal on ground 1(f) but I would refuse the appeal.
The circumstances of the offending
The four offences committed by the appellant arose out of an extremely serious course of conduct perpetrated against his former wife, RB, and her sister. An account of this course of conduct, sufficient for present purposes, is that as summarised by the Judge in her sentencing remarks.
After you and the complainant separated there was an intervention order in place. RB got a house at Parafield Gardens. She was scared to live at the house and scared of what you might do. She went to the house regularly to clean it. On 27 January 2014, she was there with her sister. You broke in through a window. You had a big knife and cut through the flyscreen. You had a rope in your hand and you were threatening towards your ex-wife. You wanted her to take back the report that she had made to the police but she was not going to do that. You pushed her into the bedroom, saying that you would kill her. Her sister was trying to intervene. Eventually you threatened her and put a rope around her neck and pulled on it. She said in evidence she had difficulty breathing. You pushed her to the ground and tried to undress her. Her sister was trying to stop you. You threatened her sister and said you would hurt her. You wanted RB to withdraw the complaint that she had made to the police. Eventually you left the house and RB and her sister went home. The police were called and an ambulance conveyed her to hospital. She had red marks on her neck.
The Judge received victim impact statements from both RB and her sister. At the time of sentencing, RB was still in shock and was in fear for her life and that of her family members. She now regards the appellant as a very dangerous man because of the force he has used against her and his threat to kill her if she told anyone about the domestic violence that had been occurring. The sister was also in shock and in fear for her own life and that of RB and other family members.
The Judge noted that in November 2013 the appellant had committed an offence of assault against RB. This was dealt with in the Magistrates Court in October 2014 without conviction and by the imposition of a bond to be of good behaviour for six months. The Magistrate observed that the appellant had reacted in a physical way by pushing RB away during an argument but that he had come before the court as contrite, remorseful and apologetic. It is not clear whether the Magistrate was aware, at the time he sentenced the appellant, that the appellant had by then been charged with the more serious offences presently under consideration.
Principles applicable to an appeal against sentence
The principles applicable to an appeal against sentence are those summarised by the High Court in House v The King.[6] The complaints raised by the appellant in this case allege what can be described as process errors. There is no complaint of an outcome error, that is, that the sentence imposed was manifestly excessive. These two types of error and the proper approach of an appellate court have been explained by Stanley J in R v Wheeler.[7]
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v R does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
(footnotes omitted)
[6] [1936] HCA 40; (1936) 55 CLR 499 at 504-505.
[7] [2015] SASCFC 83 at [20].
An appellate court has no authority to intervene in what, ultimately, is a discretionary decision by a sentencing judge, merely on the basis that it would place greater or lesser weight on one or more sentencing considerations than did the sentencing judge. In R v Lutze,[8] Vanstone and Parker JJ stated the position in a way that has repeatedly been adopted by judges of this Court.
A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”: Kentwell at [35] set out above.
[8] [2014] SASCFC 134; (2014) 121 SASR 144 at [47].
Grounds 1(a) and (e)
The appellant during submissions dealt with these grounds together. As far as ground 1(a) is concerned the appellant’s primary contention is that, when declining to make a home detention order and contrary to the requirements of subsection 33BB(3) of the Sentencing Act, the Judge failed to make a finding as to the risk, if any, that the appellant posed to general community safety. Section 33BB of the Sentencing Act is in the following terms.
33BB—Home detention orders
(1)Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 5; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
(2)A home detention order—
(a)     must not be made—
(i)unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; or
(ii)if the defendant is being sentenced to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; and
(b)     should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.
(3)The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.
(4)The court must also take the following matters into consideration when determining whether to make a home detention order:
(a)     the impact that the home detention order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the prisoner would, if released, be required to reside;
(b)     any report ordered by the court from the CEO or any other person or body for the purpose of assisting the court in determining whether to make a home detention order;
(c)     any other matter the court thinks relevant.
It was submitted, to the effect, that the making of a finding as to the risk posed to community safety was essential to the proper exercise of the discretion whether or not to make a home detention order (ground 1(a)). It was further contended that any such finding in this case ought to be to the effect that the appellant posed no general threat to community safety and that any threat to the specific victims involved could be addressed by home detention conditions.
The appellant further contends that a proper appreciation of the written reference provided by Mr Habibi was relevant to any assessment of the safety of the community but that the Judge erred in failing to give it its proper effect (ground 1(e). I will deal with this subsidiary issue first.
In the sentencing remarks, the Judge said this about the reference.
Mr Habibi has also written a reference for you. He has known you since you went into his travel agency shop and booked tickets for your family to travel to Iran in December 2012. Since then you have helped him in relation to a number of Persian customers and he obviously values your assistance. Whilst you have been on home detention he visits you at your home and is sad that you cannot participate in activities outside the home because of the restrictions. He expresses his disappointment that you have been found guilty of the charges as they have had a damaging impact upon your positive personality, attitude and future. As I said earlier even making allowances for any language issues, there appears to be no recognition by Mr Habibi of your offending even the offending to which you have admitted.
The appellant’s criticisms of her Honour’s assessment of the reference focussed on her observation in the last sentence: “even making allowances for any language issues, there appears to be no recognition by Mr Habibi of your offending even the offending to which you have admitted”.
It was contended that the reference itself is replete with references by Mr Habibi to the offending and that her Honour has either overlooked this or has misconstrued the purport of the reference in this respect. It is correct that Mr Habibi does refer in a number of places to the offending and was aware of it at the time he wrote the reference. The opening paragraph makes this plain.
I am Said Habibi, it is a pleased to write a reference regarding the personal and professional character of Mortazah Taheri who has found guilty to the charges of aggravated serious criminal trespass, aggravate threaten harms and aggravate threaten life.
In addition, Mr Habibi makes reference to the offending in at least three other places.
The gravamen of Mr Habibi’s reference is an assertion of the appellant’s good character and of the close friendship that had developed between the two men as a result of the assistance the appellant provided to Mr Habibi in his travel agency business. However, and after allowing for Mr Habibi’s lack of felicity with the written English language, as did the Judge, it is the context in which Mr Habibi addresses the offending that raises an obvious concern.

The offending comprised a serious example of physical violence and threats of violence perpetrated against women in a domestic violence environment. Whilst Mr Habibi had become aware of the offending, it did not cause him to modify in any way his previously held view of the appellant’s character. It would appear that the offences committed were only troubling to Mr Habibi because of the adverse impact on the appellant’s happiness and lifestyle and on Mr Habibi’s capacity to obtain full benefit from the relationship. The following extracts suggest that Mr Habibi, by and large, is concerned only with the effect of the offending and its aftermath on their relationship and on the appellant’s own happiness.
But his home detention, and criminal trespasses did not changed my mind about him. More than that I much miss him because he cannot come outside as before. He is like my brother, his problem is my problem ... I mostly visit him at his house and stay there for lunch or dinner talking with his such adorable family ...
I am very disappointed that he’s been found guilty of the charges as they have negative impact on his positive personality, attitude and also his future.
The main point of the reference is as an attestation of all of the positive features that Mr Habibi has discerned in the appellant’s character and in the appellant’s conduct towards Mr Habibi and towards the appellant’s family.
However, Mr Habibi’s perceptions are not necessarily reliable or to be adopted without question. On my reading of the reference as a whole, it is apparent that Mr Habibi, whilst recognising that the offending occurred, has not given consideration to or been prepared to recognise what it might indicate about the appellant’s character as he presents himself to persons outside his immediate family and social setting. Clearly, the Judge had read and paid regard to Mr Habibi’s reference. It would not have escaped her Honour that Mr Habibi was writing the reference with knowledge of the offences committed. With this in mind, and having assessed the reference for myself, I understand the Judge’s comment in the last sentence of the extract set out earlier that “there appears to be no recognition by Mr Habibi of your offending ...” to be a reference to there being no recognition of the significance of such offending when it comes to assessing the true character of a person as opposed to the character presented by that person to those persons he loves and wishes to impress. On my reading of the reference, it was open to her Honour to arrive at the view she took and to discount Mr Habibi’s reference accordingly.
I return to the question of whether or not her Honour properly exercised the available discretion when declining to make a home detention order and, in particular, whether she had been obliged to make a finding as to whether or not or the extent to which the appellant posed a risk to the safety of the community.
In R v Dell; R v Dell,[9] the Court of Criminal Appeal (Doyle J with whose reasons Kelly and Parker JJ agreed) endorsed a two stage approach to a determination under section 33BB said to be consistent with the approach earlier taken by a differently constituted Court of Criminal Appeal (Kourakis CJ with whose reasons Vanstone and Nicholson JJ agreed) in R v Filipponi.[10] In a more recent consideration of section 33BB, Vanstone J (with whose reasons Parker J agreed) in R v Hosking,[11] summarised the position in this way.
In R v Filipponi [2016] SASCFC 148 the Chief Justice (with whose reasons Justice Nicholson and I agreed) discussed the structure of Part 3 Division 3A of the Act and the circumstances in which there might be scope for a home detention order, yet not scope for suspension under Part 5. At [23]-[24] Kourakis CJ said this:
Subparagraph (c) is directed towards the suitability of the person to serve a sentence on home detention. That criterion addresses primarily the subjective circumstances of the defendant, like his or her capacity to support himself or herself, or be supported by others in private accommodation, and whether he or she is likely to comply with the conditions of home detention.
Once enlivened, the discretion conferred by s 33B(1) of the Sentencing Act to make a home detention order must be exercised having regard to the purposes of sentencing and all relevant considerations. Those purposes importantly include punishment, community protection and both general and personal deterrence on the one hand, and the scope for rehabilitation on the other.
In R v Dell (2016) 126 SASR 571 Doyle J, with whose reasons Kelly and Parker JJ agreed, considered the legislation in terms of the question whether a one-stage or two-stage approach to the making of such an order was required. Doyle J concluded that a two-stage approach was appropriate. That is, a sentencing judge should consider whether “the defendant was a suitable person to serve a sentence on home detention”: s 33BB(1)(c), and, if so, whether, having regard to the full range of sentencing considerations, the sentence should be suspended under Division 3A.
Naturally, cases will arise where either suspension under either Part 5 or Part 3 Division 3A will be quite out of the question, and that will be so without any reference to the suitability of the defendant for a home detention order. That might be because of the necessity for considerations of general and personal deterrence, protection of the public or punishment to predominate.
I do not take the reasons of the Chief Justice in Filipponi or the reasons of Doyle J in Dell to suggest that in every case there will need to be a determination of whether a person is suitable for a Division 3A disposition. Where Doyle J spoke of the first and second stages of the enquiry, I do not take his Honour to dictate a sequence in which the relevant factors must be addressed. Rather, I consider he was making the point that they are separate matters for consideration and each must be addressed before a home detention order is made. Indeed, at [65] Doyle J found no error in the Judge not having expressed a conclusion about the appellant’s suitability for home detention, having found that it was not appropriate.
[9] [2016] SASCFC 156; (2016) 126 SASR 571 at [47], [50].
[10] [2016] SASCFC 148; (2016) 126 SASR 464 at [23]-[28].
[11] [2017] SASCFC 50 at [6]-[9].
The Judge appears to have adopted this two stage approach. Her Honour first identified the appellant as a “person who is a suitable candidate given his history”. If this was an expression of her Honour’s satisfaction that the appellant was a “suitable person” such that the essential precondition to the exercise of the discretion in section 33BB(1)(c) had been satisfied, my only query would be whether such a conclusion was premature and unduly favourable given her Honour’s subsequently expressed reasons for refusing to make the order.
Nevertheless, her Honour then went on to consider the broader discretionary factors (second stage) which includes (insofar as material on the facts) the matters provided for in subsections (2) to (4) together with the full range of sentencing considerations including punishment, community protection and both general and personal deterrence on the one hand and the scope for rehabilitation on the other.[12]
[12] R v Filipponi [2016] SASCFC 148; (2016) 126 SASR 464 at [24].
The Judge first explained why she declined to order a section 38 suspension. In so doing, her Honour made specific reference to a number of personal considerations that would tend to favour suspension: that the appellant was still a young man; that he has mental health issues; that his parents have mental health issues; and that there is obvious concern on the part of the appellant and in the family in relation to the possibility of deportation following the completion of any sentence imposed. Her Honour then made specific mention of counter-veiling factors: that the appellant was not a first offender and could not expect leniency; that he had not shown any remorse or contrition; and that the offences were of a very serious nature.
The Judge immediately thereafter proceeded to consider the question of home detention and it should be accepted that the matters that informed her Honour’s decision not to order a section 38 suspension also formed part of her Honour’s consideration of the section 33BB discretion. The Judge gave the following reasons as to why a home detention order was not appropriate.
Home detention pursuant to s.33BB of the Criminal Law (Sentencing) Act, is an option in this case. You are a person who is a suitable candidate given your history. However in the circumstances I consider that the element of deterrence in relation to your offending must play a significant role. To date there has been no recognition of your offending that gives me confidence that you have or will embark upon a course of rehabilitation.
As I said earlier, these offences are serious offences of their type. They show a persistence in relation to your attitude towards your ex-wife such that you would breach an existing intervention order, in order to commit the offences and to breach the bail that you were on.
In the circumstances I do not consider that home detention is appropriate.
It would seem that matters of particular relevance to her Honour’s decision in this respect were: the importance of deterrence (by inference, both personal and general deterrence); the seriousness of the offending; and the absence of any recognition of and any contrition for the offending which, together with the fact that it had been committed in breach of an existing intervention order and whilst on bail, suggested an ongoing risk with respect to the appellant’s former wife. I interpolate that the same factors also suggest a more general concern as to prospects of rehabilitation and risk to other women with whom the appellant might enter into a relationship.
The considerations expressly referred to by the Judge in the context of the section 38 and section 33BB discretions hark back to a more expansive discussion by her Honour earlier in the sentencing remarks.
Your offending is very serious. The sentence that I impose must have a significant degree of deterrence associated with it. It cannot be overlooked that you committed the offences for which you were found guilty by the jury, after you committed the offence of assault and were subject to an intervention order. To date you have shown no remorse and there is no acknowledgement of your offending. Whilst I accept that you have not reoffended whilst you have been on home detention, it cannot be said that rehabilitation has occurred, nor can it be said that you have any recognition of the domestic violence issues that have arisen in relation to you and your ex-partner. In recent times the serious issue of domestic violence and how to address it has been publicly debated. It is well-known to all of us that the issues in relation to domestic violence have wide ranging ramifications. The law is very clear, that in relation to such issues, deterrence plays an important role. This deterrence is not just directed towards you as personal deterrence but to the wider community who are minded to commit offences such as this.
In my view, the premise underlying the appellant’s complaint under ground 1(a) is not made out. Section 33BB does not require a sentencing judge to make a specific finding as to the nature or level of risk to the safety of the community that a particular offender might represent. What section 33BB(3) requires is that when determining whether to make a home detention order, a paramount consideration of the court must be the safety of the community. I am satisfied that the Judge did address this consideration. Her Honour did so by identifying the risk factors relevant with respect to both the primary victim and the community generally, albeit without expressly identifying this analysis as being a paramount consideration.
In declining to make a home detention order, the Judge came to an overall assessment of the risks imposed based on the information available. In this respect, the seriousness of the offending in question and the very real importance of personal and general deterrence in this case should not be downplayed. As Kourakis CJ observed in R v Filipponi.[13]
... the occasion to impose a home detention order will only arise in those cases in which the balance of circumstances weighs against a finding that there is good reason to suspend the sentence, pursuant to Pt 5 of the Sentencing Act. It follows that home detention will only be ordered in cases in which the incidents of the home detention regime satisfactorily address those considerations which have precluded a suspended sentence. If the major consideration precluding a suspended sentence is general deterrence, fashioning a home detention regime which operates effectively as such may be difficult.
Another factor, whilst not determinative, but militating against home detention in this case is the length of the sentence and for the reasons given in R v Filipponi.[14]
It can also be observed that as a general rule the longer the period of imprisonment, the greater is the demand for punishment, community protection and general deterrence. Moreover, long sentences with strict home detention conditions may place intolerable strains on the offender and other occupants of the home.
Finally, a long period on home detention with only moderate or light restrictions on movements reduces substantially the degree of community protection a home detention order provides.
For those reasons the occasions when a home detention order will be appropriate for long terms of imprisonment will be limited.
[13] [2016] SASCFC 148; (2016) 126 SASR 464 at [22].
[14] [2016] SASCFC 148; (2016) 126 SASR 464 at [32]-[34].
There was no material error in the approach adopted by the Judge and the discretion not to make a home detention order was within the discretion available. As far as the latter proposition is concerned, the factors relied on in this case by the Judge as militating against a home detention order were, in my view, sufficiently persuasive even so as to outweigh a finding, had it been made, of no or limited risk to the community (which finding I would not endorse).[15]
[15] See R v Dell; R v Dell [2016] SASCFC 156 at [56].
Ground 1(c) – the issue of concurrency
The appellant contends that as between the sentences for counts 1 to 3 (head sentence five years) and count 4 (head sentence 18 months) the Judge should have ordered full or nearly full concurrency. Her Honour ordered partial concurrency to the extent of 12 months and explained:
There will be some partial concurrency ... that reflects the fact that [all offences] occurred within one course of conduct, but they were quite separate in their commission.
There is no complaint to the effect that either head sentence was manifestly excessive[16] only that the discretion as to concurrency miscarried.
[16] If ground 1(f) were to succeed a process error material to the head sentence but not an outcome error will have been established.
The offence against the sister (count 4) occurred at the time of the appellant’s mistreatment of his then wife and whilst the sister was intervening to try to stop him. The offence of aggravated threatening harm to the sister assumed colour (to say the least) by the presence of the same large knife involved in counts 2 and 3 concerning RB. Substantial concurrency was warranted. However, count 4 was itself a serious offence and a separate incursion into criminal conduct involving a separate victim with consequences for that victim additional to and separate from those experienced by RB.
Ordinary principles applying to concurrency[17] support a finding that full concurrency was not warranted and that the amount of concurrency ordered by the Judge was within the available discretion.
[17] For example, as explained by Wells J in Attorney-General v Tichy (1982) 30 SASR 84 at 92-93.
Ground 1(f) – failure to have regard to the risk of deportation
The factual background giving rise to the concern underpinning this ground of appeal was summarised by the Judge as follows.
Your parents were born in Afghanistan, you were born in Iran. Your parents moved to Iran, from Afghanistan as a result of unrest in Afghanistan that resulted in your father being wounded. [Counsel] took me through the history, that is a very sad one, in relation to the exile of your family from Afghanistan. The living conditions for your family in Iran were very difficult. You were not recognised as people, it was said, in Iran because of your Afghani citizenship. Under Iranian law you were not able to attend school, because Afghani people were required to pay for school in their country. No Afghani had the right to work in Iran so, effectively, your family had to work behind the scenes secretly.
From the submissions that were made to me, it is clear and I accept that your family’s life in Iran was very difficult. It seems that there was not enough money to meet your daily living expenses, and life, it was said, was pointless.
In 2008 your mother's eldest sister became a widow and could no longer support her children. She was accepted into Australia as a refugee. In 2011 she sponsored your family to move to Australia, which you did, as refugees with a permanent residence visa.
The appellant contended that the Judge was obliged to have regard to the fact that a sentence of imprisonment longer than 12 months, were it to be imposed, would lead to:
(i)the automatic revocation of the appellant’s visa under section 501 of the Migration Act 1958 (Cth);
(ii)upon release, the transfer of the appellant into immigration detention; and
(iii)unless the Minister determines to revoke the cancellation in the exercise of his discretion, the removal of the defendant to his country of origin.
It was further contended that this fact was relevant to the exercise of the sentencing discretion and in particular the considerations prescribed by section 10(1)(j), (l), (n) and (o) of the Sentencing Act being, respectively: the need to ensure adequate punishment; the character, antecedents, age, means and physical and mental condition of the appellant; the probable effect any sentence under consideration would have on dependents; and any other relevant matter.
I will accept for present purposes but without finally deciding, that (i) to (iii) above accurately summarise what would follow for this appellant from the imposition of a sentence of imprisonment of more than 12 months. On this assumption (and on the basis of the analysis of the relevant legislative provisions put forward by the appellant), the following conclusion as set out in the appellant’s outline of argument can also be assumed for present purposes.
[I]t can be seen that two matters are certain (assuming as is proper that the Minister’s delegates and officers comply with their statutory duties under the Migration Act): the appellant’s visa will be cancelled; and, he must on release be taken into immigration detention. As to what is less than entirely certain, there is a real likelihood that the appellant will be removed to Afghanistan. The factors that have not permitted mitigation in criminal sentencing (his denial of the offences) inhibit any explanation being given to the Minister on an application to revoke in relation to the offences, other than personal matters and matters concerning his potential treatment were he to be removed to Afghanistan.
The question whether or not a risk of deportation in circumstances such as the present is a matter that ought properly be taken into account in mitigation and, if so, the extent to which or manner by which it should be taken into account, is unsettled as far as the law in this State is concerned. The conflicting approaches according to the authorities have recently been examined in R v Leka.[18]
[18] [2017] SASCFC 77 at [21]-[29] (Stanley J with whose reasons Peek and Hinton JJ agreed). See also R v Zhang [2017] SASCFC 5 and the observation by Stanley J in Leka, that Zhang may have been decided per incuriam with respect to the earlier decision in R v Berlinsky [2005] SASC 316.

Nevertheless, and like Stanley J in Leka, I do not see it as necessary to resolve this question in order to dispose of this ground of appeal. The appellant’s ultimate contention is that the Judge failed to bring to account the specific consequences that have been identified as likely to follow imposition of a sentence of imprisonment of more than 12 months. I do not accept this.
The Judge, in her sentencing remarks, referred to the prospect of deportation in a number of places and in a number of contexts. The first reference was in these terms.
The submission was made to me by [counsel for the appellant], that your parents would suffer greatly if you were not there to assist them or if you were imprisoned with the result that you may be liable to deportation. It was suggested that in those circumstances I should consider a sentence that is less than 12 months and suspended, as it may not trigger the provisions of the Migration Act. Although it was conceded that your offending is serious, it was suggested that I fashion a sentence that may accommodate this. In the circumstances I do not consider that these are appropriate considerations to take into account. It is my duty to sentence you on the basis of the objective seriousness of the offending, taking into account the purpose of sentence and where I can, tempering it with mercy.
Her Honour was correct not to fashion a suspended sentence of less than 12 months simply in order to avoid or perhaps assist in minimising the prospect of deportation. Her Honour’s obligation was to fashion an appropriate sentence having regard to all of the circumstances relevant to the sentencing discretion. Given the nature of the offending, its seriousness, the need for personal and general deterrence and the lack of contrition and acceptance by the appellant, a sentence of 12 months or less, suspended, would not have been appropriate notwithstanding the appellant’s personal circumstances, including the spectre of deportation.
Her Honour did express herself here in fairly absolute terms – “in the circumstances I do not consider that these are appropriate considerations to take into account”. However, her Honour’s statement is to be considered in the context in which it appears which was an appeal for a 12 month suspended sentence. It is evident, on a reading of the remarks as a whole, that her Honour did have regard to the very real prospect of deportation and its likely effect on both the appellant and his parents.
I accept that your parents have suffered greatly ... I accept that [their conditions of chronic PTSD with depression] may be made worse by their concern and worry about you and what may become of you if you are sentenced to a term of imprisonment.
In 2016 you were again assessed and found to be severely depressed and highly anxious. The predominant cause of this was said to be the guilty verdicts in this court, and the possibility of a custodial sentence that could in turn lead to deportation. ...
I have no doubt that the spectre of deportation is a source of great anxiety. This anxiety must extend beyond you to those who care about you.
In sentencing you today, I take into account that you are still a young man, you have a consistent work history, a medical condition, and a degree of uncertainty about your future. In addition to this your parents ... are deeply anxious about your fate, not just in this court but beyond that.
I have given consideration as to whether this sentence can be suspended. I recognise that you are still a young man. I take into account that you have mental health issues as do your parents and there is obvious concern in relation to your deportation.
However as no submissions have been made to me that you would be deported from this country, I cannot proceed on that basis, as there is much uncertainty as to what would happen to a person such as you who may or may not be returned to a country that is still in conflict.
The appellant placed reliance on the last of the extracts set out above and her Honour’s observation, “I cannot proceed on that basis, as there is much uncertainty ...”. Nevertheless, it is evident from the other extracts that her Honour did take into account the concern caused to both the appellant and to his parents as to the prospect of deportation and also to the prospect of deportation itself. As I read the final extract set out above, her Honour is making the point that she cannot proceed on a basis of certainty, that is, that there could be no doubt that deportation will occur. Her Honour was quite right not to proceed on the basis of certainty.
As I have indicated, I am satisfied that her Honour did take into account as a personal circumstance relevant to her Honour’s sentencing discretion the real prospect of deportation and the hardship that such a prospect would visit on both the appellant and his parents. Any concern that her Honour placed insufficient weight on this consideration or that other judges would have placed greater weight on this consideration is not to the point in the absence of the assertion of an outcome error. On the assumption that risk of deportation was a consideration relevant to the sentencing considerations in section 10(1)(j), (l), (n) and (o) of the Sentencing Act and available, as a matter of law, to be deployed in this way, I am satisfied that her Honour had regard to it.
Conclusion
In my view, none of the grounds of appeal have been established and I would grant permission on ground 1(f) but dismiss the appeal.