R v Tracey - [2006] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRACEY & ORS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Layton)
9 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Crown application for leave to appeal against sentence - respondents pleaded guilty to manslaughter - after reductions for their pleas of guilty and for time already spent in custody, respondents Tracey and Considine both sentenced to four years imprisonment with an eighteen month non-parole period, respondent Wallace sentenced to two years four months imprisonment with a nine month non-parole period - whether sentences manifestly inadequate - whether sentences reflected the need for general deterrence - whether the starting points for the sentences were too low - whether the offending falls into a distinct category of offences which are likely to recur - whether a standard or range ought to be set by the Court for this type of offence - whether the reductions for the pleas of guilty were too high - whether the non-parole periods were such a low proportion of the head sentence that they demonstrate an error of principle - consideration of principles governing Crown appeals - application for leave to appeal against sentence refused.
R v Payne (2004) 89 SASR 49; R v Osenkowski (1982) 30 SASR 212, discussed.
R v Elliott (2001) 121 A Crim R 254; Everett v The Queen (1994) 181 CLR 295; R v Angus [2004] SASC 317; R v Creed (1985) 37 SASR 566; R v Errigo (2005) 92 SASR 562; R v Ivic [2006] SASC 8; R v Nemer (2003) 87 SASR 168; R v Shepperbottom (2001) 121 A Crim R 69; R v Wilton (1981) 28 SASR 362; R v Yousef (2005) 155 A Crim R 134, considered.

R v TRACEY & ORS
[2006] SASC 66
Court of Criminal Appeal: Doyle CJ, Sulan and Layton JJ

DOYLE CJ: I would refuse leave to appeal against the sentences imposed by the Supreme Court.
The application for leave to appeal raises no issue of sentencing principle. Nor is this an appropriate case for the court to indicate a sentencing standard. The offence of manslaughter occurs in circumstances that vary widely. It is not practical to establish a standard or benchmark that will accommodate the variations: R v Angus [2004] SASC 317 at [39]. Nothing would be achieved by trying to do so. Nor do these particular offences represent a distinct category of manslaughter for which a benchmark or sentencing standard can usefully be indicated. Nor has the sentence been shown to be so disproportionate to the seriousness of the crime as to require intervention. That being so, it is not appropriate to grant leave to appeal: R v Payne [2004] SASC 160; (2004) 89 SASR 49 at [86].
I agree with the reasons of Sulan J for so deciding. I add some brief observations.
The sentences imposed by the sentencing Judge were reduced to allow for the time that Mr Tracey, Mr Considine and Mr Wallace had already spent in prison or on home detention bail. That allowance should be added back, to indicate the true head sentences: Mr Tracey and Mr Considine five years four months each, Mr Wallace three years eight months. Had they not pleaded guilty, the head sentences would have been seven years’ imprisonment and five years’ imprisonment respectively.
It is understandable that the family of Mr Watson, the victim of this tragedy, and some members of the public, might think that the taking of a life by a criminal act calls for heavier punishment.
But the sentencing Judge was required by law to take account of the circumstances of the crime, and of other matters to which she referred. Sulan J has dealt with these matters.
In other words, while the sentence had to reflect the fact that Mr Watson’s life was taken, and the significance of the loss of a human life, the sentence also had to reflect these other considerations.
A significant aspect of the circumstances of the offences for which the Judge had to allow is this. It was accepted by the Director of Public Prosecutions that Mr Tracey and Mr Considine did not take the rifle to Filsoll Street intending to cause harm by shooting someone or even by shooting at or near someone. They took the rifle so that Mr Murray could use it to scare off the people who had come to Mrs Considine’s home, looking for him. It was wrong of Mr Tracey and Mr Considine to take the rifle with them that night. They introduced a dangerous weapon into a highly charged situation. This was both foolish and dangerous, as the consequences demonstrated. They realised that the rifle might be used and might be fired, and might cause serious injury.
The case is one of manslaughter because they were party to the loaded rifle being introduced into the situation and being used in a manner that was unlawful and dangerous. But it was accepted by the Director of Public Prosecutions that the rifle was not fired with intent to kill anyone, or even with intent to hurt anyone. The criminal conduct was the unlawful and dangerous conduct in which they engaged. That made the case less serious than some of the manslaughter cases that come before the Court.
Mr Wallace did not realise that the rifle was in the car until he had driven the car almost to Filsoll Street. He was liable because he continued to drive to Filsoll Street after he realised the rifle was in the car, realising that the rifle might be loaded and might be presented and fired after the three men arrived at Filsoll Street. He was liable because of a decision that he made, in a short space of time very shortly before the tragedy unfolded.
These were important circumstances for the Judge to consider because, as I have briefly explained, they distinguish the case from the more serious kinds of manslaughter that come before the court.
As to the other matters that the Judge had to consider, the fact that Mr Tracey, Mr Considine and Mr Wallace pleaded guilty was significant. So was the fact that the Judge was satisfied that they were genuinely contrite and remorseful.
The Judge had to weigh up all these things. She had to consider the need to deter people from taking weapons into highly charged situations. She also had to consider the need to make clear the wrongfulness of the respondents’ conduct.
There is no simple way of balancing these considerations. It was not simply a matter of considering what should be the punishment for the taking of a life. The sentencing process is more complicated than that.
The sentence was a merciful one. But it is not outside an acceptable range for a case like this. The Director has not demonstrated any error in the Judge’s approach to the case. Nor has the Director demonstrated any error in the result. That is why leave to appeal should be refused.
SULAN J: This is a Crown application for leave to appeal against the sentences imposed on John Tracey, Joshua Considine and Michael Wallace.
Tracey, Considine and Wallace were all charged with the murder of Stuart Watson. Tracey and Considine pleaded guilty to manslaughter, after the trial Judge delivered her rulings following a lengthy voir dire hearing. Wallace maintained his plea of not guilty to the charge of murder. The Crown filed a fresh information charging him with the offence of manslaughter on 2 September 2005. Wallace applied to stay the proceedings. The Judge declined to do so. Wallace pleaded guilty to the offence of manslaughter on 12 September 2005.
Facts
The offence occurred at the house of Elizabeth Considine, the mother of the respondent Joshua Considine, on 31 July 2002, at 3 Filsoll Street, Elizabeth Downs. Rebecca Considine, the respondent’s sister, and her de facto partner, Troy Murray, resided at those premises. It had been alleged that Troy Murray had assaulted a woman who was in a relationship with one Stephen Watson, who is the brother of the deceased, Stuart Watson. Friends and associates of Stephen Watson (the “Watson associates”) decided to confront Troy Murray about the assault.
Earlier in the day of the shooting, the Watson associates went to 3 Filsoll Street looking for Murray in order to confront him. They spoke to Elizabeth Considine. Murray was not there. They made a number of threatening remarks, and then left.
Another group of Watson associates returned to the house at about 7.15pm that evening again looking for Murray. Amongst the group was Stuart Watson, the victim. The people again made threats including threatening to kill Murray. The front door of the house was kicked heavily, and a barbell was thrown through the front window before the group left.
At some stage during the day the police had been called to the premises. The three respondents had also attended 3 Filsoll Street during the day after being alerted to the situation by Rebecca Considine. The respondents had been present when police attended.
A group of about eight Watson associates, including the victim Stuart Watson returned to the premises later that evening. Stuart Watson was described by one witness as being ‘the one who was pumped up and wanted revenge’. The other members of the group went along as backup. They could not find Murray. After some further aggressive behaviour, including throwing a chair onto the roof of the house, they left.
At about 9.00 pm, a smaller group including Stuart Watson returned to the premises for a fourth time. On this occasion Considine’s sister, Rebecca, phoned Considine to ask for help. Considine was at Tracey’s house with the other two respondents. It was about five minutes drive away. Rebecca Considine was genuinely in fear for herself and her family’s safety. Considine asked Tracey and Wallace to come with him to Filsoll Street. Before leaving, there was a conversation between Considine and Tracey about taking a semi-automatic rifle with them. They discussed giving the rifle to Murray so that he could scare off any potential assailants. Unbeknown to Wallace, they agreed to take the rifle with them.
The three men left Tracey’s house in Wallace’s car and drove to Filsoll Street. The rifle, which was loaded, was placed in the car unbeknown to Wallace, and was positioned between the left passenger seat and the front passenger door. Wallace became aware of the rifle only moments before they arrived at the premises when he noticed it in the car.
Although the rifle was primarily intended to be given to Troy Murray to scare off the Watson associates, and to protect Murray and Rebecca Considine, it is an agreed fact that Tracey and Considine anticipated that the rifle might be presented in public by Considine and/or Tracey in circumstances where it might be discharged and cause serious injury. It is also an agreed fact that Wallace became aware of the rifle in the car shortly before pulling up at the front of the premises.
As the car approached the premises Considine saw people in the driveway. He believed that a fight was either occurring, or about to occur. Considine grabbed the rifle, alighted from the car, and moved towards the back of the car. He called out to the group in an attempt to stop them from engaging in a confrontation. When they failed to stop he fired a shot, or shots from waist height in order to scare them.
At that time, Tracey was concentrating his attention on people who were in a nearby reserve, whom he thought may also have posed a threat. He was startled when he heard the gunshots, and rushed over to Considine. He attempted to get Considine back to the car in order to leave the scene, by grabbing both him and the rifle. Tracey cannot say how he grabbed either the rifle or Considine. It is an agreed fact that both men were startled by the discharge of the rifle and were panicked and confused. While both Tracey and Considine had hold of the rifle it discharged again. Neither are able to say on how many occasions the weapon discharged, nor in what direction the muzzle was pointing. Neither intended to hit anyone. It is agreed that, in all, there may have been as few as two, or as many as four shots fired.
Tracey, Considine and Wallace then drove off. As they drove off Tracey leaned out of the vehicle while holding the rifle, and yelled abuse to people in an approaching vehicle. He then threw the rifle from the car.
The basis of Wallace’s plea of guilty was that, although he was not a party to any common purpose to take or use the firearm at the time of leaving Tracey’s house, he agreed that when he became aware that the rifle was in the car, he did not know but recognised the possibility that the rifle may be loaded. He realised that it might be presented and discharged during a confrontation at 3 Filsoll Street but still continued to drive to the premises.
It is an agreed fact that Stuart Watson was hit by one bullet from the rifle in the area of the left upper quadrant of the abdomen. It is also an agreed fact that none of the appellants were aware at the time of leaving the scene that anyone had been shot.
The victim was found by friends some distance from the area in which he must have been when he was shot. He was taken to hospital but later died.
The sentences
The sentencing Judge had regard to the circumstances of the offence and to the personal circumstances of the respondents.
At the time of sentencing, Tracey was twenty eight years old. His antecedents as an adult included only one offence of carrying an offensive weapon, for which he was convicted without penalty. Because of his deep love of animals, he had worked for his mother and as a volunteer in the area of animal welfare for some time. The Judge accepted that Tracey was genuinely contrite. He directly expressed his remorse to the court.
The sentencing Judge described Considine as someone who appears to have been well regarded in the community prior to this offence. His antecedent report disclosed a number of prior offences, mostly occurring whilst he was a youth. The Judge accepted that there was nothing of significance in his adult history. The Judge had regard to a report of Mr Fugler, who noted a very strong bond between Considine and his sister Rebecca. He reported that Considine had accepted a paternal role towards his sister, which had added to his anxiety to protect her on the night of the incident. Mr Fugler reported that, since the incident, Considine has suffered depressive mood anxiety and emotional distress. He suffered from psychological tension, heightened anxiety, social withdrawal, panic attacks, paranoid ideation and emotional numbing. The Judge noted that Considine has accepted responsibility for his actions.
The sentencing Judge noted that Wallace had a close relationship with Tracey and Considine and regarded them as family. The Judge did not regard anything in Wallace’s antecedent history as being of significance. Wallace was twenty eight years old at the time of sentencing. He had been in a stable relationship for the past seven years, and has two children from the relationship. A pre-sentence report reflected favourably on Wallace’s behaviour whilst on home detention bail. Wallace read a statement to the court which expressed his contrition. The Judge accepted that he was genuinely contrite for his involvement.
The sentencing Judge also had regard to the large number of victim impact statements which were submitted. She noted that the death of Stuart Watson has had a significant impact on his family.
The sentencing Judge indicated that but for the plea of guilty and the time already spent in custody, she would have sentenced Tracey to seven years imprisonment, with a four year non-parole period. The Judge then allowed a reduction of sixteen months for his plea of guilty. The sentence was further reduced by twenty months for time already spent in custody and for time spent on home detention bail. She imposed a head sentence of four years imprisonment.
Ten months was deducted from the non-parole period for the plea of guilty, and with the credit for time spent in custody the resulting non-parole period was eighteen months.
Considine was treated in the same way as Tracey. The starting point for his sentence was seven years imprisonment with a four year non-parole period. The sentencing Judge reduced the sentence by twenty months for the time already spent in custody and on home detention bail, and deducted a further 16 months as a discount for Considine’s plea of guilty. That left a head sentence of four years.
Considine’s non-parole period was reduced by ten months to reflect the guilty plea. The non-parole period was set at eighteen months.
Wallace was in a different position because of his unawareness of the rifle in the car until they had almost arrived at the house. The sentencing Judge indicated that but for the plea of guilty and the time already spent in custody, she would have sentenced him to five years imprisonment with a three year non-parole period. The Judge deducted twelve months from the head sentence for the plea of guilty, which together with deductions for time already spent in custody resulted in a head sentence of two years four months.
The non-parole period was reduced by seven months to reflect the plea of guilty, and twenty months credit for time already served. The resulting non-parole period was nine months.
Issues on appeal
Counsel for the prosecution argued that the starting points for the sentences of the respondents were manifestly inadequate. The maximum penalty for manslaughter is life imprisonment. Counsel submitted that serious cases of manslaughter ought to attract significant penalties. A sentence must be determined by assessing the seriousness of the offence, any perceived need for general deterrence and personal deterrence and the offender’s prospects for rehabilitation. These factors should then be assessed against the maximum penalty for the offence.
Counsel submitted that the sentencing Judge placed too much weight on the fact that the respondents did not intend to cause harm to anyone. It was submitted that they planned to go to Filsoll Street, contemplating that the gun might be used. Counsel submitted that the circumstances of this case and, particularly, because the respondents had contemplated that serious injury might possibly occur, placed the offending in the most serious category of manslaughter. It was submitted that, if the respondents had contemplated that there was a very real risk of really serious bodily injury, their state of mind would have been sufficient to amount to murder. The starting points were, it was argued, so low, that it indicates the sentencing Judge did not sentence the respondents on this basis.
It was further submitted that the sentence does not reflect the need for general deterrence. Strong policy reasons exist to deter individual citizens from assuming responsibility for law enforcement within the community. Counsel argued that the sentence ought to have strongly reflected the need for general deterrence.
The starting points, it was argued, demonstrate an error of principle in that they fail to pay due regard to the statutory maximum, underestimate the seriousness of the offending, fail to pay due regard to the need for general deterrence, and demonstrate that too much weight was placed on personal mitigating factors.
The prosecution submitted that cases such as this type are likely to recur, and therefore fall into a distinct category of offences. Counsel submitted that a standard or range ought to be set by the court for this type of case.[1] Counsel accepted that there is no established range of sentences for the offence of manslaughter.
[1] R v Osenkowski (1982) 30 SASR 212.

It was further submitted that the sentencing Judge erred in allowing a reduction of about twenty per cent for the respondents’ pleas of guilty. After the pre-trial arguments had commenced Tracey made his first formal offer to plead. Considine and Wallace did not make formal offers to plead until after the sentencing Judge had heard a lengthy voir dire and had reserved her rulings.
Finally, it was submitted that the non-parole periods are such a low proportion of the head sentences that they do not reflect the need for punishment, general deterrence and personal deterrence. They are so manifestly inadequate that they demonstrate an error of principle.
In response, Counsel for the respondents, Tracey and Considine, submitted that this is not an appropriate case for leave to be granted. He submitted that even if there were a demonstrable error, leave to appeal should not automatically be granted.[2] He submitted that when the only ground of appeal is that the sentence is manifestly inadequate there are two situations where leave to appeal should be granted.[3] Firstly, leave should be granted where it is necessary for the court to establish a relevant sentencing principle. Secondly, leave to appeal should be granted where the sentence is so far below the range of sentences for that offence that it reflects an error of principle. He submitted that there was no established range for sentences for the offence of manslaughter.
[2] R v Shepperbottom (2001) 121 A Crim R 69 at [3].
[3] R v Nemer (2003) 87 SASR 168 at 172.
Counsel for Tracey and Considine submitted that there were a number of mitigating factors. Counsel referred to Considine being in a state of panic when his sister telephoned him to seek his assistance. The earlier visits by police appeared to him to have been ineffectual. He was only five minutes drive away from her house and in the urgency he sought the assistance of the other respondents who were with him. The rifle was primarily intended to be given to Troy Murray to protect himself and Considine’s sister. At the scene he grabbed the rifle believing a fight was about to occur. He was inexperienced with the use of firearms. He fired warning shots. Tracey then tried to grab him and the rifle to get him to stop firing and leave the scene. In their combined panic whilst both of them held the rifle, it went off accidentally. One of the bullets struck Stuart Watson who later died. There is no evidence to establish which bullet struck him.
Counsel for the two respondents submitted that the sentencing Judge did consider the matters going to the objective seriousness of the offending and that given these factors the sentences were not manifestly inadequate. Likewise the setting of the non-parole periods, it was submitted, involved the exercise of a discretion which ought to be left to the sentencing Judge. There is no rule as to the percentage of the head sentence a non-parole period ought to be. Furthermore, the percentages were within acceptable boundaries when allowance was made for time already spent in custody.
In respect of the reduction for the respondents’ pleas of guilty, counsel for the two respondents submitted that there were a number of issues which arose prior to the pleas being entered which prevented the resolution of the pleas. Some of the issues included being briefed very late in the proceedings after new solicitors took over the file, the former solicitors not having obtained detailed instructions. Further, the prosecutor’s attitude towards negotiating a resolution changed, which made achieving that end more realistic. Given these factors it could not be considered a late plea when Tracey and Considine did finally plead guilty to the offence of manslaughter.
Turning now to the submissions of counsel for the respondent Wallace. Counsel submitted that this was not an appropriate case for the appeal court to intervene. In all the circumstances the sentence was not so low as to ‘shake the public confidence in the administration of justice’.[4] He submitted that Wallace’s culpability was less than that of Tracey and Considine. The sentencing Judge accepted this submission and sentenced Wallace accordingly.[5] Wallace was not a party to any agreement to take the rifle to the premises and was not holding the rifle when it discharged. He became aware that the rifle was in the car, and foresaw the possibility that the rifle might be presented and discharged during any confrontation, only moments before stopping the car at the front of the premises. He had seen a car driving along Filsoll Street with its head lights off and observed it stop opposite 3 Filsoll Street. He had seen persons alight from the car and move across the road to the premises. He was aware that Rebecca Considine was on the property, and he was aware of the conduct previously exhibited by a group of Watson’s associates earlier in the day. He also believed that the police had been of little assistance at their previous attendance. Given these circumstances it was submitted that it was reasonable for him to continue on rather than turn back, leaving his friend’s sister to deal with a volatile situation not of her making. Finally, it was submitted that Wallace was not aware that anyone had been injured by the rifle when he drove away in the car.
[4] R v Nemer (2003) 87 SASR 168 at 172.
[5] Sentencing Remarks p.15.
Counsel submitted that the extent of Wallace’s offending was such that the sentence was not manifestly inadequate. It is not appropriate to set a standard or range for sentences for the offence of manslaughter. The circumstances under which this offence can be committed are so varied that it cannot be said that the circumstances are likely to recur.[6]
[6] R v Angus [2004] SASC 317 at [25].
Principles governing a Crown appeal
Leave to appeal against a sentence will be granted in rare and exceptional circumstances.[7] The Court should only grant leave to appeal where it is necessary to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, or to correct a sentence which is so manifestly inadequate that it amounts to an error in point of principle.[8]
[7] Everett v The Queen (1994) 181 CLR 295 at 305.
[8] Everett v The Queen (1994) 181 CLR 295 at 300; R v Wilton (1981) 28 SASR 362 at 363; Elliott v The Queen (2001) 121 A Crim R 254 at 257; R v Yousef (2005) 155 A Crim R 134 at 53; R v Errigo (2005) 92 SASR 562 at 17; R v Nemer (2003) 87 SASR 168.
In R v Osenkowski[9], King CJ said:
…The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[10]
[9] (1982) 30 SASR 212.
[10] R v Osenkowski (1982) 30 SASR 212 at 213.
In R v Payne[11], in a decision of five members of the Court (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ) the Court said:
The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained.[12]
[11] (2004) 89 SASR 49.
[12] R v Payne (2004) 89 SASR 49 at 70.
Even where an error has been shown, leave to appeal will not necessarily be granted.[13] The Court will ordinarily only intervene where there is some wider purpose in granting leave to appeal, for example to enunciate a principle relevant to sentencing, or to establish or maintain adequate sentencing standards.[14] Intervention by the Court may also be warranted where the sentence is so far below the appropriate range for sentences that the inadequacy of the sentence demonstrates that an error of principle has occurred, or where the sentence is so inadequate that it would ‘shake public confidence in the administration of justice’.[15]
[13] R v Shepperbottom (2001) 121 A Crim R 69 at [3].
[14] R v Ivic [2006] SASC 8 at [23].
[15] R v Nemer (2003) 87 SASR 168.
Manifestly inadequate
I accept that punishment and general deterrence must be an important factor in sentencing for this kind of offending. The three respondents chose to take the law into their own hands instead of calling the police. A dangerous weapon was brought into an already volatile situation. These were serious errors of misjudgement. Strong public policy reasons exist to deter members of the public from assuming the responsibility of law enforcers. It occurred in circumstances in which Considine’s sister, who was justifiably fearful of an aggressive group, sought help from her very concerned brother. At an earlier time, the police had attended, but that did not deter the Watson group from returning and continuing their aggressive conduct. Although the respondents demonstrated a serious lack of judgement, their conduct must be seen in the light of the urgency of the situation which was not of their own making.
There is no established range of penalties for sentences for manslaughter. Manslaughter can be committed in a number of ways. It may be in the context of an unlawful and dangerous act, it may be in circumstances of criminal negligence, it may be where there is a specific intent to kill, but under provocation, or in excessive self-defence. Within all of these alternatives, there will be degrees of culpability. The offence varies greatly in the seriousness and the circumstances under which it is committed.[16] I do not accept the submission that this is the type of offending which might tend to recur sufficiently often and in sufficiently similar circumstances to warrant the setting of a standard or range for offences of this type.
[16] R v Angus [2004] SASC 317 at [25] and [39].
The sentencing Judge took into account general deterrence. She also had regard to personal factors, including each respondents’ lack of intention to inflict harm, each respondents’ good prospects for rehabilitation and their contrition.
As to Tracey and Considine, she had regard to the circumstances surrounding the discharge of the rifle, including that it discharged after Tracey grabbed Considine to prevent further shots being fired. The sentencing Judge was aware of the maximum sentence, the seriousness of the offending and the need for general deterrence in the case of Tracey and Considine. The Judge did not err in her statement of the facts or in the matters to which she had regard. She considered the need for deterrence. She correctly identified the mitigating circumstances. The head sentence was merciful, but is not manifestly inadequate. There is no basis for the grant of leave to appeal.
As to Wallace, the starting point for his offence was entirely appropriate. Wallace was not party to the plan to take the rifle to the premises until moments before he and the others arrived at the scene. He did not handle the rifle, nor was he involved in the struggle during which the gun discharged. Given the circumstances preceding this particular attendance at the premises, and his observations as they drove down Filsoll Street, he decided to proceed with their plan to help Rebecca Considine and Troy Murray. It was a poor decision, and his sentence appropriately reflects this. There is no demonstrable error, and no basis for the grant of leave to appeal.
The non-parole periods and reductions for pleas of guilty
As to the non-parole periods for each of the respondents, I conclude that the sentencing Judge’s discretion has not miscarried. There is no rule determining what percentage of the head sentence a non-parole period should be.[17] On the contrary, the setting of the non-parole period is the opportunity for a judge to acknowledge aspects which ought to affect the time an offender should spend in custody, such as obvious contrition, and prospects for rehabilitation. Non-parole periods should reflect an element of general deterrence.
[17] R v Creed (1985) 37 SASR 566.
I am not satisfied that the sentencing Judge has failed to take all relevant factors into account. But for the pleas of guilty and reductions for time already served in custody, the non-parole periods for Tracey and Considine would have been four years imprisonment. The reductions for time already served significantly reduced the non-parole periods. This is entirely legitimate.
Similarly the reduction for each of the respondents’ guilty pleas is not outside the acceptable range of reductions. Having regard to the complex situation underlying the timing of the guilty pleas, and the findings the sentencing Judge made as to the respondents’ genuine contrition, the respondents’ ages, and their prior good record I am not satisfied that an error has been established.
Wallace would have been sentenced to a non-parole period of three years. With the reduction for the plea of guilty, and credit of twenty months for time already served in custody, the non-parole period ordered was nine months. I do not consider that the resulting non-parole period is manifestly inadequate.
Conclusion
Accordingly no error has been demonstrated. When the offending and surrounding events are fully understood, I am not satisfied that the sentence is so far below an appropriate range of sentences so that it demonstrates an error of principle or would shake public confidence in the administration of justice. Although there may be a view that the sentences were merciful, it cannot be said that they were manifestly inadequate. I would refuse leave to appeal.
LAYTON J: I have had the advantage of reading the draft reasons for decision of Sulan J. I agree that the appeal should be refused.