R v Wheeler - [2015] SASCFC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHEELER
[2015] SASCFC 83
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Stanley)
11 June 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCING
Application for permission to appeal against sentence.
The applicant was found guilty of manslaughter after trial by jury. He had been charged with murder. The jury acquitted him of murder but found him guilty of the alternative charge of manslaughter. The sentencing judge imposed a head sentence of 15 years. The applicant further admitted a breach of bond. The judge revoked a suspended sentence of imprisonment of 10 months which she ordered should be served cumulatively. Accordingly, the judge imposed a head sentence of 15 years and 10 months imprisonment. Pursuant to s 32(5)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), by reason of the head sentence for manslaughter, the mandatory non-parole period was 12 years.
Whether the sentence is manifestly excessive.
Whether the sentencing judge made process errors in acting on mistaken findings of fact or in failing to take account of material considerations.
Held per Stanley J (Gray and Peek JJ agreeing) refusing permission to appeal:
1. No error has been demonstrated in the findings of fact relied on by the judge in sentencing (at [25]).
2. The judge’s reasons were adequate to explain the basis upon which she found the facts upon which she imposed sentence. Ground 2 dismissed (at [27]).
3. While the head sentence imposed was at the high end of the wide permissible range for sentencing for this offence, it was not manifestly excessive (at [35]).
4. As the appeal against the non-parole period is predicated on the proposition that the non-parole period is manifestly excessive because the head sentence is manifestly excessive, the application to appeal against the non-parole period must fail. Ground 1 dismissed (at [44]).
5. Permission to appeal refused. Notice of appeal dismissed (at [46]).
Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ba), s 32A(2)(b), referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; DW v The Queen (2004) 150 A Crim R 139; The Queen v Morse (1979) 23 SASR 98; Markarian v The Queen (2005) 228 CLR 357; R v Hansen (2011) 206 A Crim R 54; Yardley v Betts (1979) 22 SASR 108; R v McLachlan [2004] SASC 277; R v Lavender (2005) 222 CLR 67; R v Weinman (1987) 49 SASR 248; R v Goulding [2007] SASC 60; R v Franklin (2012) 114 SASR 206, considered.

R v WHEELER
[2015] SASCFC 83
Court of Criminal Appeal: Gray, Peek and Stanley JJ

GRAY J: I would refuse permission to appeal. I agree with the reasons of Stanley J.
PEEK J. I would refuse permission to appeal. I agree with the reasons of Stanley J.
STANLEY J:
Introduction
This is an application for permission to appeal against sentence.
The applicant was found guilty of manslaughter after trial by jury. He had been charged with murder. The jury acquitted him of murder but found him guilty of the alternative charge of manslaughter. The sentencing judge imposed a head sentence of 15 years. The applicant further admitted a breach of bond. The judge revoked a suspended sentence of imprisonment of 10 months which she ordered should be served cumulatively. Accordingly, the judge imposed a head sentence of 15 years and 10 months imprisonment. Pursuant to s 32(5)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), by reason of the head sentence for manslaughter, the mandatory non-parole period was 12 years. The judge found that there was no basis to fix a shorter period than the prescribed mandatory minimum.[1]
[1] Criminal Law (Sentencing) Act 1988 (SA) s 32A(2)(b).
Circumstances of the offending
The victim, Ms Rowlinson (the deceased), died as a result of a single stab wound inflicted by the applicant with a knife in the early hours of 29 March 2013. The offence was committed on the front verandah of the applicant’s residence in Eudunda. The applicant was a boarder in this house. The applicant boarded with the Gallagher family.
On the night of 28 March 2013 the applicant was drinking at the Light Hotel with Mr Gallagher and the deceased. The applicant and the deceased had previously been in a sexual relationship. The evidence is that during the course of the night the deceased was behaving in a flirtatious manner with Mr Gallagher and other patrons of the hotel. In any event, it appears the deceased, the applicant and Mr Gallagher were all intoxicated. At some point the applicant left the hotel after an exchange with Mr Gallagher in which Mr Gallagher said to the applicant that the applicant was to stop sleeping with Mr Gallagher’s wife and that he wanted him to leave the house that night.
The applicant left the hotel in an angry state. He returned to the Gallaghers’ home where he spoke to Mrs Gallagher, telling her that the deceased and her husband had been “getting it on” at the hotel. He made threats to kill Mr Gallagher and told Mrs Gallagher that he would slash her husband from his throat down to his stomach. The applicant armed himself with a knife and waited for Mr Gallagher and the deceased to return home. During this time he made various phone calls to Mr Gallagher and to the deceased as well as to the police. During those phone calls the applicant was heard to say “as soon as he gets back to the house I’m going to gut the cunt”.
Mr Gallagher and the deceased drove to the Gallaghers’ residence in the deceased’s motor vehicle. She was driving.
The judge found that as soon as the car pulled up outside the Gallaghers’ residence the applicant ran down to the car and slashed the front tyre, puncturing it. He then retreated to the front verandah of the house. The deceased alighted from the car, threw a wine bottle in the direction of the applicant, and ran up the verandah towards him. The judge found an altercation took place on the front verandah during which the applicant stabbed the deceased once to the chest.
The applicant attempted to administer first aid but continued to make threats to Mr Gallagher saying “that’s what you get, don’t fuck with me”, “want me to stab you fucking now”, “I’ll say you did it”, and “you fucking messed with the wrong cunt”.
Circumstances of the applicant
The applicant was born on 7 June 1969. He was 43 years of age when the offence occurred. He was born in Frankston, Victoria. He is the eldest of two children. His parents separated when he was three years old. He had an unhappy and unsettled childhood. His stepfather was physically violent towards him. He is estranged from both his parents and his brother. He has been married and had one other long-term relationship. He has a teenage son and daughter but has not seen them for some years.
The applicant was educated to Year 10. He has been a member of the Australian Army and the Army Reserves. He has worked as a driver, in hospitality, as a removalist and at a power station.
He has suffered from depression, has attempted suicide and has abused drugs and alcohol.
As an adult he has a history of multiple offending since the age of 20. They include larceny, false pretences, unlawful possession of a controlled substance, carry an offensive weapon, threatening to cause harm, dishonest dealings with documents, assault police, non-aggravated and aggravated serious criminal trespass, damaging property and estreatment of bail as well as various driving offences. He attributes his offending to substance or alcohol abuse.
At the time of his offending he was on a bond for offences of non-aggravated serious criminal trespass, theft and possession of amphetamines to which he had been sentenced to a suspended term of imprisonment of 10 months.
The judge’s sentencing remarks
The judge set out the factual basis of the offending as follows:[2]
The events leading up to the altercation on the front verandah of Mr and Mrs Gallagher’s home in Eudunda in the early hours of 29 March 2013 satisfy me beyond reasonable doubt that you were and remained the aggressor. You were angry primarily with Mr Gregg Gallagher that night but also with Ms Rowlinson. I find that there had been some kind of relationship, including a sexual relationship, between you and Ms Rowlinson at some stage prior to 28 March 2013. It is not clear from the evidence what the extent of that relationship was but I accept that you were very fond of Ms Rowlinson. Indeed I consider that your behaviour earlier at the Light Hotel that night demonstrated that you were jealous of Ms Rowlinson’s interactions with other men that night.
You left the hotel in an angry state. When you arrived home at the Gallaghers’ home you told Mrs Gallagher that Ms Rowlinson and her husband had been ‘getting it on’ at the hotel. You threatened to kill Mr Gallagher and you told Mrs Gallagher that you would slash him from his throat down to his stomach. You then armed yourself with a knife and waited for Mr Gallagher and Ms Rowlinson to come home. I do not accept that you were frightened or acting in self-defence, even though you claimed to be so doing in the 000 calls to the police.
You displayed a murderous intent towards Mr Gallagher during those phone calls. You were heard saying ‘As soon as he gets back to the house I’m going to gut the cunt’ and your behaviour in those phone calls is consistent with you being an angry man, not a fearful man. Far from taking steps to remove yourself from the threat you say you faced from Mr Gallagher and the unknown person, you in fact waited for him and Ms Rowlinson to arrive home. This was after telephoning both Mr Gallagher and Ms Rowlinson incessantly while they remained at the hotel and uttered threats during those phone calls, some of which were heard by others.
As soon as the car pulled up outside the Gallaghers’ home you ran down to the car and slashed the front tyre of Ms Rowlinson’s vehicle. You knew very well that would upset Ms Rowlinson and indeed it did. She got out of the car, threw a wine bottle in your direction and ran up towards the verandah. An altercation took place on the front verandah. Contrary to your evidence, that altercation was between you and Ms Rowlinson. Mr Gallagher had not even got to the front verandah by the time you stabbed Ms Rowlinson. Whatever happened, and I can make no finding as to the precise circumstances in which you stabbed Ms Rowlinson, it happened within three or four minutes of Ms Rowlinson’s arrival at the property. She was stabbed because you armed yourself with a knife in a drunken angry state and waited for Gregg Gallagher, who was the real target of your aggression, to arrive home. Ms Rowlinson’s response to having her car tyre slashed caused the situation to escalate and it was that altercation, caused directly as a result of your provocative act in the street, which led to the altercation which led to Ms Rowlinson’s death. I am in no doubt that the jury gave you the benefit of the doubt in relation to any murderous intent towards Ms Rowlinson. I accept that you did not mean to kill Ms Rowlinson. Nevertheless, things got out of control directly as a result of your aggressive behaviour that night. None of it was in self-defence.
Ms Rowlinson suffered one stab wound to the chest which caused her death very quickly. There is no evidence to support your version at trial as to what happened on the verandah, in particular in relation to Mr Gallagher’s supposed involvement on that verandah. There was no evidence of any injury to the back of your head or any other part of your body consistent with your version. In the immediate aftermath of the offending you were still angry at Gregg Gallagher threatening him, ‘That’s what you get, don’t fuck with me’, ‘Want me to stab you fucking now?’, ‘I’ll say you did it’, ‘You fucking messed with the wrong cunt’. These were all things you were heard to say immediately after what occurred on the front verandah.
Your counsel submitted that Ms Rowlinson’s behaviour that night amounts to conduct which substantially mitigates your offending. I cannot accept that submission.
Ms Rowlinson may well have been angry and she may well have remonstrated with you on that front verandah but nothing, I repeat, nothing justifies you introducing a knife into the altercation with Ms Rowlinson. Further, nothing justifies you introducing a knife into the situation at all that night. Ms Rowlinson’s conduct and condition that night did not substantially mitigate your offending.
Your conduct in arming yourself with a knife in the first place while in an angry and aggressive mood and then provoking the confrontation and using the knife in the course of that confrontation is what led to Ms Rowlinson’s death.
[2] Sentencing remarks of Justice Kelly delivered 8 August 2014 at 1 – 4.
The sentencing judge addressed the applicant’s personal circumstances as follows:[3]
I have read the psychologist’s report obtained recently. It would seem that you have had a very unstable and unhappy childhood and as an adult your life has been characterised by substance abuse and an ongoing inability to maintain good interpersonal relationships. Indeed, the psychologist expressed the view that you have some of the clinical symptoms associated with an antisocial personality disorder or a borderline personality disorder as well as symptoms associated with chronic alcoholism.
The most positive aspect of the report was the psychologist’s opinion that in light of your apparent remorse and motivation to address your problems following the severe negative consequence of your most recent conduct, it appears that your capacity for responsive rehabilitation is greater than it was previously. I accept that you do feel and have felt great remorse for your actions in the early hours of 29 March 2013. However, the circumstances in which you killed Ms Rowlinson place your offending in a very serious category for the crime of manslaughter.
[3] Sentencing remarks of Justice Kelly delivered 8 August 2014 at 6 – 7.
The judge addressed the basis of the sentence in the following terms:[4]
The crime of manslaughter is not a crime for which there is any particular tariff prescribed. This court must be careful to ensure that the sentence imposed will act as an effective deterrent on people like you who not only use a lethal weapon in an argument or a fight but, as in your case, caused that fight in the first place with the almost inevitable result that someone would be killed. That is exactly what happened on the night Ms Rowlinson died.
In addition to that, one of the other relevant circumstances is that at the time you were already less than five months into a bond which you had entered into the previous November to be of good behaviour after, as I said, persuading a magistrate at Berri to give you one further chance and persuading the magistrate that you were making serious attempts to rehabilitate yourself and give up alcohol. As we now know, nothing could be further from the truth.
The sentence of this Court must accord due recognition to the human dignity of your victim. It must also reflect the legitimate interest of the general community in denouncing and punishing alcohol-fuelled violence of such an egregious kind.
You have admitted breaching the bond to be of good behaviour which you entered into on 16 November 2012. I revoke the suspension of that sentence of imprisonment of 10 months. That sentence will now have to be served in addition to the sentence which I will impose in respect of the manslaughter of Ms Rowlinson and that sentence is to be served cumulatively upon the head sentence which I will impose for the manslaughter.
The Parliament has provided that the maximum sentence for the offence of manslaughter is life. Given the overall circumstances I consider your offending must be placed in a very serious category for offences of manslaughter. Your prior history is such that you are not entitled to any leniency and I have already found there are no circumstances which would justify reducing the mandatory minimum non-parole period which applies to the head sentence.
[4] Sentencing remarks of Justice Kelly delivered 8 August 2014 at 7 – 8.
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[5] where Doyle CJ said:[6]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[5] [2009] SASC 346, (2009) 266 LSJS 283.
[6] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[7] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,[8] 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.
[7] (1936) 55 CLR 499.
[8] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
Submissions on appeal
There are two grounds of appeal. First, that the sentence is manifestly excessive. Secondly, that the sentencing judge made process errors in acting on mistaken findings of fact or in failing to take account of material considerations. In relation to the first ground the applicant submits that both the head sentence and therefore the non-parole period were outside the permissible range of sentences given the circumstances of the offending. This submission was substantially related to the applicant’s argument on the second ground of appeal. In addition the applicant submitted the judge failed to make allowance for his offer before trial to plead guilty to manslaughter. In relation to the second ground the applicant submits that the judge sentenced on a mistaken basis because she failed to resolve factual disputes relevant to the sentencing process. In particular, the applicant submits that the judge erred in finding that the applicant was jealous of Ms Rowlinson and that he was the aggressor in the events that occurred on the verandah culminating in her death. In this context, the applicant submits that the judge failed to consider the nature of the relationship between him and Mr Gallagher from which she should have considered he was acting defensively to protect himself from Mr Gallagher. The applicant submits the judge’s reasons fail to explain adequately the basis for finding the facts upon which she imposed sentence.

The respondent submits that the applicant’s arguments on the second ground of appeal are misconceived. The factual basis upon which the applicant’s argument is predicated was rejected by the sentencing judge. The facts found by the judge were open on the evidence. No error has been demonstrated. Given the findings the head sentence was appropriate. This was a serious example of the offence and matters of specific and general deterrence required a significant head sentence. The length of the non-parole period was fixed by s 32(5)(ba) of the Act. No reason was established to depart from the four-fifths mandatory non-parole period.
Consideration
It is convenient to address ground 2 first.
The applicant submits that the judge should have sentenced on the basis that he was not jealous of the deceased. Accordingly, the circumstances of the offending were not influenced by any feelings of jealousy he felt for the deceased. The applicant submits that his actions were motivated by concern about the Gallaghers’ marriage. He punctured the car tyre to prevent Mr Gallagher going to the deceased’s house. Further, the applicant submits that the judge should have found that he had been assaulted by Mr Gallagher with an iron bar some weeks previously. He had been hospitalised as a result and advised that he was vulnerable to further injury if struck again in the head. Accordingly, he armed himself for his own protection. Finally, he submits that the judge should have found that he was brandishing the knife on the verandah while being attacked by Mr Gallagher who was hitting the back of his head.
The applicant’s submission is predicated upon a factual basis that the sentencing judge did not accept. The judge heard the evidence. It is plain from the sentencing remarks that she rejected the applicant’s account that he was not jealous of the deceased and her conduct at the hotel that night. On the contrary, she found he was angry when he left the hotel. She found his anger did not abate while he waited for Mr Gallagher’s return at the house. This finding was amply justified on the evidence of the threats made during the telephone calls. It was open to the judge to find, as she did, that the applicant exhibited a murderous intent towards Mr Gallagher. The evidence gave rise to an inference that his anger towards Mr Gallagher was related to his jealousy. The evidence is that his anger was apparent even after the fatal injury had been inflicted on the deceased. This evidence was relevant in permitting an inference to be drawn as to the applicant’s state of mind at the time the fatal wound was inflicted. The judge expressly rejected the applicant’s claim that he was frightened of Mr Gallagher or acting in self-defence notwithstanding anything he said to that effect in telephone calls to the police. She further rejected the applicant’s claim that Mr Gallagher was on the verandah assaulting him when the fatal wound was inflicted. As the judge observed, there was no evidence of the applicant having suffered any head injury. In any event, there were grounds to doubt the veracity of his allegation that he had been assaulted previously by Mr Gallagher with an iron bar. No error has been demonstrated in the findings of fact relied on by the judge in sentencing.
I do not accept any suggestion that the judge failed to explain adequately her reasons for the factual basis for sentencing. The extent of the duty of a sentencing judge to give reasons is well established. In DW v The Queen[9] the ACT Court of Appeal said:[10]
[T]he general scope of the duty should be noted: it is a duty to explain his or her decision; not to write an exhaustive treatise on every aspect of the trial. The reasons need not be lengthy or elaborate … It is necessary to state the essential grounds and, in many cases, the reasons for preferring one conclusion to another … It is not necessary to make explicit findings on every disputed aspect of the evidence if such findings can be clearly inferred…
[9] [2004] ACTCA 22, (2004) 150 A Crim R 139.
[10] [2004] ACTCA 22 at [27], (2004) 150 A Crim R 139 at 147.
In my view, the judge’s reasons were adequate to explain the basis upon which she found the facts upon which she imposed sentence. I would dismiss ground 2.
It follows that the applicant’s submission that the head sentence is manifestly excessive because the judge sentenced on a mistaken factual basis is untenable. Nonetheless, I consider whether the head sentence can be considered manifestly excessive on the factual basis upon which the judge did sentence the applicant.
In The Queen v Morse,[11] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[12]
[11] (1979) 23 SASR 98.
[12] (1979) 23 SASR 98 at 99.
The maximum sentence for manslaughter is life imprisonment and/or a fine. The maximum sentence prescribed for an offence provides a yardstick that allows a comparison between the worst possible case and the case under consideration.[13] Further, as the sentencing judge correctly identified, there is no tariff for the crime of manslaughter. The basis for findings of guilt of manslaughter and the circumstances of such crimes differ widely. There is much room for the exercise of discretion in imposing a sentence for this offence. That must be all the more so where a sentence is imposed following a trial in which all aspects of the offending have been explored in evidence.[14]
[13] Markarian v The Queen [2005] HCA 25 at [30] – [31], (2005) 228 CLR 357 at 372.
[14] R v Hansen [2011] SASCFC 10 at [7], (2011) 206 A Crim R 54 at 56.
The applicant put before the court a comparative table of sentences for manslaughter imposed in this State since 1999. The court was invited to conclude, by reference to this material, that the head sentence was manifestly excessive. Although in some appeals analyses of this kind may be useful,[15] they are of little assistance in cases of the present kind given the range of culpability involved in the offence of manslaughter. In R v Lavender[16] Gleeson CJ, McHugh, Gummow and Hayne JJ said:[17]
For more than 100 years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences. The culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or … it may be such that a nominal penalty would suffice.
[15] Yardley v Betts (1979) 22 SASR 108 per King CJ at 110 – 111; R v McLachlan [2004] SASC 277 per Doyle CJ at [30] – [31].
[16] [2005] HCA 37; (2005) 222 CLR 67.
[17] [2005] HCA 37 at [22]; 2005) 222 CLR 67 at 77.
In R v Weinman[18] King CJ observed that the facts and circumstances of a crime of manslaughter are so varied that it is questionable whether decisions of an appellate court can establish any intelligible standards.
[18] (1987) 49 SASR 248 per King CJ at 248. See also R v Goulding [2007] SASC 60 per Gray J at [18].
Consideration of the sentencing table indicates, in a general way, that the head sentence is relatively high. But the Court does not interfere to reduce a sentence simply because it regards a sentence as high or severe, or on the basis that it would not have imposed as lengthy a term of imprisonment as the sentence under appeal. It will only interfere where it is satisfied the sentence is so high as to be outside a reasonable range of sentences for the offence.
This offending occurred in the context of a violent, drunken rage. The jury plainly had a reasonable doubt that the applicant had the requisite intention to kill or inflict grievous bodily harm upon the deceased. Nonetheless, they must have accepted that in brandishing the knife in her direction he was committing an unlawful and dangerous act carrying with it an appreciable risk of serious injury. This occurred in a context where the judge was entitled to find, as she did, that he was in a jealous rage and harboured a murderous intent towards Mr Gallagher who the deceased had been flirting with that night.
In this case the applicant inflicted only the single fatal blow and this occurred in the context where he was heavily intoxicated and immediately remorseful. Nonetheless, I consider that while the head sentence imposed was at the high end of the wide permissible range for sentencing for this offence, it was not manifestly excessive.
In my view the judge was correct to characterise this case as being placed in a very serious category for offences of manslaughter. The circumstances of the offending called for a substantial sentence. Considerations of personal as well as general deterrence loomed large. There is nothing in the applicant’s personal circumstances which weighs in favour of leniency. In addition, I agree with the sentencing judge that an appropriate sentence must accord due recognition to the human dignity of the deceased. It must also reflect the legitimate interest of the community in denouncing and punishing alcohol-fuelled violence of such an egregious kind. I do not consider the sentence imposed by the judge was so out of proportion to the gravity of the offending as to require the interference of the Court.
Further, I do not consider there was any error demonstrated on the part of the sentencing judge in failing to give any credit for the applicant’s offer to plead guilty to manslaughter just before the commencement of the trial. The offer was not accepted by the prosecution in satisfaction of the charge of murder.
In R v Hansen,[19] White J, in a dissenting judgment, undertook a review of the authorities which support the principle that an unaccepted offer to plead guilty to the offence of which an accused is ultimately found guilty is to be regarded as mitigatory.[20] However, his Honour considered the application of that principle to be subject to the existence of other relevant factors, including the timing of the offer (and, in particular, its proximity to the trial), any terms or conditions attached to the offer, the circumstances in which the offer is made and the conduct of the accused in the trial.[21]
[19] [2011] SASCFC 10, (2011) 206 A Crim R 54.
[20] [2011] SASCFC 10 at [26] – [32], (2011) 206 A Crim R 54 at 60 – 62.
[21] [2011] SASCFC 10 at [33], (2011) 206 A Crim R 54 at 62.
Vanstone J, with whom Sulan J agreed, considered that there was no reason why the sentencing judge was obliged to give credit for the applicant’s unaccepted offer to plead guilty. Her Honour did so on the basis that the accused’s evidence at trial departed from the basis for the plea put by way of offer.[22]
[22] [2011] SASCFC 10 at [8] – [10], (2011) 206 A Crim R 54 at 56 – 57.
In R v Franklin,[23] Sulan J gave further consideration to this issue. Referring to the court’s earlier reasons in Hansen, he said:[24]
A reason for there being no rule of practice requiring a sentencing Judge to give credit for an offer to plead guilty to a lesser offence than that charged, or to plead guilty to some counts charged if other charged counts are discontinued, is that each case must be considered according to its circumstances. In some cases, what counsel characterise as an offer to plead amounts to no more than a discussion between counsel sounding out the prosecutor as to a possible resolution. In many case, the approach is made by defence counsel, without specific instructions. In such circumstances, the sometimes described offer is no more than a general preliminary discussion. There is no basis in such circumstances for a defendant to obtain a reduction of the sentence.
Another example is an offer to plead guilty, but on a factual basis which is unacceptable to the Director. If, ultimately, the defendant is convicted after a trial, there may be circumstances where it is clear that the underlying factual position, as put by the Director in the defendant’s original offer, is the same. Some credit for the defendant’s offer to plead will be appropriate in such a case.
If the result of the trial is as was anticipated when the defendant offered to plead, then some credit should be given for cooperation and the offer.
In order to ascertain whether a sentence should be reduced, the Court needs to know when the offer was made, the exact terms of the offer, the underlying factual basis to the offer, and any other relevant information. Correspondence between the defendant’s legal advisers and the Director should be provided to the judge. The preferred position is for the defendant to plead guilty and for the Director to indicate why the plea is not accepted. The basis of the plea and the reasons for a refusal to accept it in answer to the information will be a matter of record.
…
In my opinion, in an appropriate case, a sentencing judge may take into account an unaccepted offer to plead guilty to a lesser offence which matches the verdict at the trial. However, the preferable course for a defendant to take is to plead guilty before the judge. There can then be no doubt about the basis of the plea and, if rejected by the Director, the judge will know why it was rejected.
[23] [2012] SASCFC 109, (2012) 114 SASR 206.
[24] [2012] SASCFC 109 at [23], [29], (2012) 114 SASR 206 at 212 – 213.
In R v Franklin, White J reaffirmed his reasons in Hansen that there will be circumstances in which unaccepted pre-trial offers by defendants to plead guilty to alternative offences may warrant a reduction in the sentence if they are the offences of which the defendants are found guilty.[25] Nicholson J agreed with White J.[26]
[25] [2012] SASCFC 109 at [43], (2011) 114 SASR 206 at 215.
[26] [2012] SASCFC 109 at [72], (2012) 114 SASR 206 at 220.
In this matter the offer to plead guilty to manslaughter was made very late. More importantly, it was made on the basis that the deceased was killed accidentally. The basis of the offer to plead was that the deceased had advanced on the knife and walked into it. The prosecution was not prepared to accept the plea on that basis. The applicant gave evidence at trial on that basis.
In these circumstances, the exception to the sentencing principle identified by White J in Hansen and Sulan J in Franklin is established. The terms of the offer, the circumstances in which the offer was made and the conduct of the applicant at trial deprive him of any credit for his offer to plead guilty to manslaughter.
For these reasons I reject the submission that the head sentence is manifestly excessive. As the appeal against the non-parole period is predicated on the proposition that the non-parole period is manifestly excessive because the head sentence is manifestly excessive, the application to appeal against the non-parole period must fail. The applicant did not submit that special reasons within the meaning of s 32A(2)(b) of the Act existed. The attack on the non-parole period was confined to the proposition that if the head sentence was too high, then the non-parole period fixed pursuant to s 32(5)(ba) of the Act had to be adjusted to reflect four-fifths of the head sentence.
For these reason I would reject ground 1 of the application.
Conclusion
I would refuse permission to appeal and dismiss the notice of appeal.