R v Yaroslavceff - [2022] SASCA 123

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v YAROSLAVCEFF
[2022] SASCA 123
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
24 November 2022
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 - APPEALS BY CROWN - EXERCISE OF DISCRETION
The Director of Public Prosecutions (SA) sought permission to appeal against sentence pursuant to s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA). On 26 April 2022, the respondent was sentenced for the following offending which had occurred at his home in the early hours of the morning during a social gathering on 28 February 2021:
1.Causing Harm with Intent to Cause Harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty for a basic offence is imprisonment for 10 years; and
2.Assault, contrary to s 20(3) of the CLCA, for which the maximum penalty for a basic offence is imprisonment for two years.

The sentencing judge imposed one sentence for both offences. She commenced with a sentence of five months, which was reduced by 15 per cent on account of the respondent’s guilty pleas entered before the committal appearance. That resulted in a sentence for both offences of four months and eight days. That sentence was suspended upon the respondent entering into a bond to be of good behaviour for 18 months.
The Director did not contend that it was not open to suspend the sentence. Rather, it was submitted that the head sentence of four months and eight days was manifestly inadequate and fails to maintain appropriate sentencing standards for offending of this kind.
Held (Livesey P and David JA), permission to appeal refused.
1.The head sentence was manifestly inadequate, but it is not appropriate to grant the Director of Public Prosecutions permission to appeal.
2.An appeal against sentence by the Director of Public Prosecutions will only be granted in rare and exceptional cases. Allowing the sentence the subject of the appeal to stand would not undermine confidence in the administration of criminal justice.
Held (Doyle JA), granting the Director permission to appeal and allowing the appeal:
1.The sentence should be set aside, and the respondent resentenced.

Criminal Procedure Act 1921 (SA) s 157; Criminal Law Consolidation Act 1935 (SA) ss 20, 24; Sentencing Act 2017 (SA) s 26, referred to.
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; Buzzacott v Police [2017] SASC 64; Cumberland v The Queen (2020) 94 ALJR 656; Director of Public Prosecutions (Vic) v Karazisis (2010) 206 A Crim R 14 at 39; DPP v Masange (2017) 325 FLR 363; Everett v The Queen (1994) 181 CLR 295; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; Hackett v The Queen [2021] SASCA 32; Harrison v The Queen [2022] SASCA 35; K, IC v The Queen; R v K, IC [2020] SASCFC 34; Lacey v Attorney General (Qld) (2011) 242 CLR 573; Mohamedali v The Queen [2022] SASCA 45; Peel v The Queen (1971) 125 CLR 447; R v Buttigieg (2020) 352 FLR 170; R v Butler [2022] SASCA 112; R v Chalmers (2012) 115 SASR 150; R v Domarecki [2016] SASCFC 67; R v Dransfield [2016] SASCFC 68; R v Ellis (1986) 6 NSWLR 603; R v F, AD [2015] SASCFC 130; R v Fowler [2014] SASCFC 16; R v Harkin (2011) 109 SASR 334; R v Hicks (1987) 45 SASR 270; R v Jacques [2021] SASCA 94; R v Jones [2022] SASCA 105; R v JW (2010) 77 NSWLR 7; R v Kong (2013) 115 SASR 425; R v Lutze [2014] SASCFC 134; R v Mangelsdorf (1995) 66 SASR 60; R v McIntosh [2017] SASCFC 87; R v McIntyre (2020) 138 SASR 17; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v O’Connor [2012] SASCFC 15; R v Parrott [2018] SASCFC 78; R v Saunders (2010) 210 A Crim R 1; R v Stansborough [2013] SASCFC 49; Ryan v The Queen (2001) 206 CLR 267; The Queen v Drewett (1983) 35 SASR 344; The Queen v Wilton (1981) 28 SASR 362; Whittaker v The King (1928) 41 CLR 230; Woodhart v The Queen [2022] SASCA 9, considered.

R v YAROSLAVCEFF
[2022] SASCA 123
Court of Appeal – Criminal: Livesey P, Doyle and David JJA
LIVESEY P AND DAVID JA:
Introduction

The Director of Public Prosecutions (SA) seeks permission to appeal against sentence pursuant to s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA).
On 26 April 2022, the respondent was sentenced for the following offending which had occurred at his home on 28 February 2021:
1.Causing Harm with Intent to Cause Harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty for a basic offence is imprisonment for 10 years; and
2.Assault, contrary to s 20(3) of the CLCA, for which the maximum penalty for a basic offence is imprisonment for two years.
The sentencing judge imposed one sentence for both offences pursuant to s 26 of the Sentencing Act 2017 (SA). She commenced with a sentence of five months, which was reduced by 15 per cent on account of the respondent’s guilty pleas entered before the committal appearance. That resulted in a sentence for both offences of four months and eight days. That sentence was suspended upon the respondent entering into a bond to be of good behaviour for 18 months.
Although the Director does not contend that it was not open to suspend the sentence, it is submitted that the sentence of four months and eight days was manifestly inadequate and fails to maintain appropriate sentencing standards for offending of this kind.
For the reasons that follow, permission to appeal should be refused.
The circumstances of the offending
Whilst his wife and infant son were away interstate, on 27 February 2021 the respondent hosted a “jam session” at his home during which music was played. The respondent is a talented musician. During the evening, the partygoers consumed significant amounts of alcohol and some prescription drugs.
During the early hours of 28 February 2021, a significant disagreement arose because one of the guests, the victim Tod Carter, spoke about his views which were sympathetic to the Nazis and which were antisemitic. The respondent’s brother became upset and distressed. He picked up a knife from the kitchen bench. As soon as the respondent told his brother to put the knife down, he did so. However, the respondent’s brother and Mr Carter soon became involved in a physical confrontation in the back yard. Another guest, Jeffrey Williamson, attacked the respondent in the kitchen. The respondent fought him off.
The respondent went into the back yard and saw that his brother was lying on the ground, apparently seriously injured and bleeding. Mr Carter was standing over him, holding a knife. The respondent’s brother had received knife wounds to each forearm and to his eyebrow. In addition, he had two black eyes and facial bruising.
The respondent waited until Mr Carter was no longer holding the knife. He then punched Mr Carter five or six times to the face, causing a range of injuries including comminuted fractures to the nasal bones and left eye socket, and a resulting hypoglobus, a blown pupil, facial bruising, broken teeth and fluid to the lungs. This conduct comprised the offending of causing harm with intent to cause harm.
The respondent then moved to the front yard where he saw Mr Williamson. The respondent regarded Mr Williamson as one of the instigators of the fighting. He punched him a couple of times to the head and then kicked him once.[1] There is no evidence about the extent of any injury caused to Mr Williamson. This conduct comprised the assault.
[1] The punching and the kicking appear to have occurred on two occasions, punctuated by the respondent checking events in the backyard.
Whilst the sentencing judge accepted that there was some element of self-defence in the offending involving Mr Carter – the respondent later said that he was scared for his life – the respondent admitted to police that the assaults on Mr Carter and Mr Williamson involved considerable anger and retribution.
Nonetheless, as soon as the respondent realised that Mr Carter was seriously injured, the respondent arranged for an ambulance and for police to attend. Were it not for admissions made to police by the respondent, the offending involving Mr Williamson may not have been detected.
The sentencing judge accepted that the respondent did not intend to cause serious injuries to Mr Carter. Mr Carter was taken by ambulance to the Royal Adelaide Hospital where he was admitted and required oral maxillary facial surgery. He was not discharged until 5 March 2021.
The sentencing judge also accepted that the respondent was not the instigator of the incidents and that the respondent had tried to defuse the situation as tensions escalated. She found that the respondent’s anger and fear culminated in the offending once the respondent saw that his brother was injured and Mr Carter was holding a knife. Nonetheless, she also found that the respondent’s conduct toward Mr Carter was entirely excessive to the threat posed. The sentencing judge held that at the time of the assault on Mr Williamson he posed no threat at all.
Neither Mr Carter nor Mr Williamson provided victim impact statements.
The circumstances of the offender
At the time of sentence, the respondent was 37 years and married with an infant child who was not yet two years.
The respondent had been gainfully employed since the age of 15 and, at the time of sentence, he had worked for the same employer for 12 years and held a responsible position as a leading hand, supervising others. The respondent’s employer remained supportive despite knowing of the charges before the court.
The respondent’s father had fled the former USSR and arrived in Australia where he met the respondent’s mother. Unfortunately, he was an abusive alcoholic and the respondent’s parents divorced when the respondent was eight.
The sentencing judge was clearly impressed by the respondent’s close and supportive family, and she referred to the letters of support received from the respondent’s wife, mother and friends who spoke highly of the respondent’s character and commitment to his family. The respondent was engaged with and supported by a local church community.
The respondent had no relevant prior offending, having been convicted for driving an unregistered vehicle.
The sentencing judge was also impressed by the respondent’s letter of apology which demonstrated that he accepted responsibility for his conduct and was committed to ensuring that it would not be repeated.
The approach of the sentencing judge
The sentencing judge was concerned that the assault on Mr Carter was prolonged and involved the delivery of five or six punches. Nonetheless, it occurred in the spur of the moment and whilst the respondent was fearful for the safety of himself and his brother.
Whilst the sentencing judge acknowledged that the offending was instigated by the victims, the respondent had known Mr Carter since childhood and was aware of Mr Carter’s views regarding the Nazis and white supremacy. However, the respondent was prepared to maintain his friendship for so long as Mr Carter did not espouse those views in the respondent’s home. That Mr Carter was prepared to make offensive remarks was a significant cause of the escalation in tension that morning. In addition, the physical altercations commenced with Mr Williamson attacking the respondent and Mr Carter attacking the respondent’s brother.
Whilst the sentencing judge accepted that the respondent did not intend to cause the extent of Mr Carter’s injuries, she pointed out that punching to the face is “very dangerous … and the experience of the courts is that very serious and debilitating injuries, and sometimes even death, can result”.
The sentencing judge said that she had regard to the primary purpose of sentencing, to protect the safety of the community, and that she also had regard to “other secondary purposes”. She found that although the offending occurred “in the heat of provocative conduct and fear on your part”, there was no penalty appropriate apart from imprisonment in respect of both offences. As both arose out of the same circumstances and occurred within a short period, she found that it was appropriate to impose a single penalty.[2]
[2] Sentencing Act 2017 (SA) s 26.
The sentencing judge found that the respondent was co-operative with police and gave them a full and frank account of his behaviour. She was satisfied that the respondent’s guilty pleas reflected that he was sorry and regretful. She allowed the full available reduction of 15 per cent for the respondent’s guilty pleas.
The sentencing judge was satisfied that good reason existed to suspend the sentence of imprisonment upon condition that the respondent enter into a bond to be of good behaviour for 18 months:
Your prior good character, the specific circumstances in which the offence occurred, your family, and your employment responsibilities in combination are good reason to suspend the sentence even when balanced against the seriousness of the offence.
In your case I consider that the protection of the safety of the community is best achieved by permitting you to remain in the community to work and to support your family. And I am satisfied that this approach will appropriately punish you and deter you from repeating the conduct in the future.
The Director does not now challenge the exercise of sentencing discretion to suspend. As will be explained, that concession is important.
Pursuing a Crown appeal: the application for permission to appeal
As is well recognised, permission to appeal will only be granted to the prosecution in rare and exceptional cases.[3] That approach reflects the long-standing concern that Crown appeals put in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal”,[4] and that they cut across “time-honoured concepts of criminal administration”.[5]
[3]     Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ).
[4]     Whittaker v The King (1928) 41 CLR 230, 248 (Isaacs J).
[5]     Peel v The Queen (1971) 125 CLR 447, 452 (Barwick CJ).
A grant of permission for a prosecution appeal is appropriate in order to determine a matter of principle, to establish or maintain adequate sentencing standards or to correct idiosyncratic views expressed by individual judges regarding particular approaches to offending or sentencing.[6]
[6] R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ).
Nonetheless, a prosecution appeal should not be allowed to unduly circumscribe the sentencing discretion of judges.[7] Indeed, it is fundamental to the administration of the criminal law that judges at first instance be allowed as much flexibility in sentencing as is consistent with the common law and statutory regime that applies: an appeal court cannot intervene merely because it would have exercised the sentencing discretion differently.[8]
[7] R v Osenkowski (1982) 30 SASR 212, 212 (King CJ).
[8] R v Butler [2022] SASCA 112, [41] (David JA and Mazza AJA).
This is not a case where it is suggested that any specific error was made by the sentencing judge. It is the outcome that is criticised. It is recognised that it may also be appropriate to grant permission where the sentence is so manifestly inadequate that it amounts to an error of principle.[9] In that kind of case permission to appeal is reserved for cases where it is necessary to correct a sentence which is so disproportionate to the seriousness of the offending that it undermines public confidence in the administration of justice. When that is demonstrated, permission is granted so as to ensure that appropriate standards of penalty are imposed and public confidence in the administration of justice is maintained.[10] As was recently emphasised in R v Butler:[11]
A prosecution appeal against the adequacy of a sentence should be approached with great care and the “rare and exceptional” test should be rigorously applied.[12]
…
Both error and strong reasons for public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The prosecution must persuade the court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.[13]
[9] Everett v The Queen (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ) citing Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ).
[10] R v Nemer (2003) 87 SASR 168, 172 [24] (Doyle CJ).
[11] R v Butler [2022] SASCA 112, [43], [45] (David JA and Mazza AJA).
[12] R v Buttigieg (2020) 352 FLR 170, [39] (Lovell J, with whom Kourakis and Nicholson JJ agreed).
[13] R v Jones [2022] SASCA 105, [13] (Lovell and David JJA, Mazza AJA); R v McIntosh [2017] SASCFC 87, [16] (Hinton J, with whom Peek and Nicholson JJ agreed).
There has for some time been debate over whether, if permission to appeal is granted to the prosecution, it remains relevant to consider the exercise of what has been described as the “residual discretion” to dismiss the appeal.[14]
[14] Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, [25]-[26] (French CJ, Crennan and Kiefel JJ).
It is not necessary to address the cases in favour of,[15] or against,[16] the continued existence of a residual discretion following the amendment to what is now s 150 of the Criminal Procedure Act 1921 (SA).[17] In a number of decisions this Court has observed that the issue remains uncertain or, in the circumstances of the case before it, it was inappropriate to exercise the residual discretion.[18]
[15] R v O’Connor [2012] SASCFC 15, [18]-[22] (Doyle CJ, with whom Gray and Sulan JJ agreed). See, in particular, at [21]: “If permission to appeal is granted, the next issue is whether the appeal should be allowed. The “residual discretion” to dismiss the appeal must be considered. The factors relevant are those already referred to”.
[16] R v Fowler [2014] SASCFC 16, [12] (Vanstone, with whom David and Parker JJ agreed).
[17] See Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, [25] (French CJ, Crennan and Kiefel JJ); R v Abdulla (2011) 109 SASR 258 and R v Saunders (2010) 210 A Crim R 1.
[18] R v F, AD [2015] SASCFC 130 at [52] (Gray, Sulan and Lovell JJ); R v Dransfield [2016] SASCFC 68 at [57] (Nicholson J, with whom Peek and Doyle JJ agreed); K, IC v The Queen; R v K, IC [2020] SASCFC 34, [72] (Bampton J, with whom Kourakis CJ and Lovell J agreed); R v Butler [2022] SASCA 112, [77] (David JA and Mazza AJA).
This case can be decided on the sole question whether permission to appeal should be granted.
The contentions of the parties
It is accepted on both sides in this appeal that there are no relevant sentencing guidelines for the offending to which the respondent pleaded guilty. Indeed, it has been remarked many times that comparing sentences for this kind of offending is generally of “limited assistance”.[19] Nonetheless, the Director cited a number of cases where the sentences of imprisonment which were imposed commenced at around two years and in some instances were very significantly longer.[20]
[19] R v Stansborough [2013] SASCFC 49, [18] (Sulan J).
[20] Mohamedali v The Queen [2022] SASCA 45; Harrison v The Queen [2022] SASCA 35; Woodhart v The Queen [2022] SASCA 9; Hackett v The Queen [2021] SASCA 32; R v Parrott [2018] SASCFC 78; R v Dransfield [2016] SASCFC 68; R v Domarecki [2016] SASCFC 67; R v Lutze [2014] SASCFC 134; R v Stansborough [2013] SASCFC 49; R v Chalmers (2012) 115 SASR 150.

Whilst a consideration of other decisions can assist in informing this Court about the approach taken to this kind of offending, the very different circumstances of the offending and the offenders in the cases cited tends to demonstrate the inutility of making any close comparison. No indicative range, still less a tariff, emerges. Indeed, even if a range could be discerned from these cases that would not operate as a fetter on the exercise of sentencing discretion.
The Director submitted that offending of this kind has the capacity to cause very serious injury and that general deterrence is an important sentencing consideration.[21] It was also submitted that where the offending involves an element of retribution it is particularly important that deterrence be given prominence because of the capacity for revenge attacks to threaten the security of the community as well as undermine the manner in which the criminal justice system is intended to operate.[22]
[21] R v Chalmers (2012) 115 SASR 150, [16] (Kourakis CJ).
[22] R v Harkin (2011) 109 SASR 334, [42] (Gray and Sulan JJ).
The Director submitted that even in cases where a lenient sentence may be thought appropriate, it is still necessary that it be proportionate to the offence and its circumstances, falling within the range available to the sentencing judge.[23]
[23] R v Dransfield [2016] SASCFC 68, [48] (Nicholson J).
In these circumstances, the Director submitted that the starting point of five months was manifestly inadequate and that the intervention of this Court was warranted so as to maintain appropriate sentencing standards and so as to ensure the maintenance of public confidence in the administration of justice.
For the respondent, it was submitted that it was necessary to address the circumstances of the offender as well as the particular circumstances in which the offending occurred. Accordingly, it was emphasised that there was an element of self-defence in connection with the first offence and, in connection with the second offence, the respondent’s disclosure of what might otherwise have been unknown guilt merited leniency.[24]
[24] Citing R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ, with whom Hunt and Allen JJ agreed), approved in Ryan v The Queen (2001) 206 CLR 267.
The respondent submitted that this was a clear case for leniency having regard to all the circumstances of the offending and the offender. The respondent submitted that the sentence did not fall outside the range available on a proper exercise of sentencing discretion.
The respondent then submitted that, before the sentencing judge, the prosecution had submitted that there was no tariff for assault and emphasis was given to the decision in Buzzacott v Police.[25] In that case, the Chief Justice had held that a starting point of 12 months for a single headbutt administered by a young man without criminal antecedents in the heat of an argument was manifestly excessive and that a short term of imprisonment of two months was more appropriate.
[25] Buzzacott v Police [2017] SASC 64.
On this basis, the respondent submitted that the recitation of the various cases relied upon by the Director on appeal, and the submission that the head sentence was so low as to undermine adequate sentencing standards, was inconsistent with the approach taken before the sentencing judge.
Although the submission was not made precisely in these terms, the respondent’s approach appeared to be that, even if it could be said that the sentence in this case was manifestly inadequate, this Court ought not grant permission to appeal given the way in which the Director had conducted the hearing before the sentencing judge.[26]
[26] DPP v Masange (2017) 325 FLR 363, [13]-[28] (Maxwell P, Redlich JA and Beale AJA).
As will be seen, we do not regard the conduct of the prosecution before the sentencing judge as an impediment to the application for permission. Whilst the reference to Buzzacott v Police before the sentencing judge is a little difficult to understand, it was a case concerning assault, not the offence of causing harm with intent.
The disposition of the application for permission to appeal
It is beyond argument that offending of this kind, involving alcohol and violence, is not to be tolerated and both community protection and general deterrence are particularly important sentencing considerations.
Given the circumstances of the offending and the offender, however, personal deterrence was of less importance and it was open to the sentencing judge to exercise leniency. Leniency could appropriately be reflected in the head sentence and non-parole period as well as in the decision to find good reason to suspend.
Whilst the offender’s good record and good rehabilitation prospects clearly furnished a basis to exercise leniency, it is difficult to see how the offence of causing harm with intent merited a sentence in this case of less than around 24 months’ imprisonment and, for the assault, around 6 months imprisonment. Were it necessary to resentence, as there were two victims s 26(2a) of the Sentencing Act 2017 (SA) would now require that “the court … indicate the sentence that would have been imposed in respect of each such offence had this provision not been applied”. Questions of concurrency would then need to be addressed before arriving at a single sentence of imprisonment and before fixing a non-parole period.
On a defendant’s appeal a specific error as to one constituent element of the sentence usually calls into question the whole sentence. For example, an error of manifest excess demonstrates that the exercise of the sentencing discretion has miscarried and would usually require that the sentence be set aside and that the defendant be resentenced. In The Queen v Wilton, King CJ explained that a prosecution appeal raises considerations additional to simply determining whether the sentencing judge erred in the exercise of sentencing discretion:[27]
An appeal against sentence by the prosecution, moreover, raises considerations which are not present in an appeal by a convicted person.
[27] The Queen v Wilton (1981) 28 SASR 362, 363 (King CJ). See also R v Mangelsdorf (1995) 66 SASR 60, 62-63 (Doyle CJ, with whom Prior and Williams JJ agreed).
In R v Drewett, King CJ emphasised that mere error or disparity in sentence does not justify appellate intervention on a prosecution appeal:[28]
Mere disparity, however, even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal against sentence. I think that it is clear that appeals by the prosecution again sentence cannot be decided on the same basis as defence appeals against sentence: Griffiths v. The Queen; The Queen v. Bitter; The Queen v. Osenkowski. An appellate court should be cautious about allowing a prosecution appeal against sentence, thereby taking a second bite at the sentencing process for the purpose of imposing a more severe penalty on a prisoner.
(Citations omitted.)
[28] The Queen v Drewett (1983) 35 SASR 344, 345-346 (King CJ).
Whilst the Director has demonstrated that the head sentence is manifestly inadequate, it is necessary to consider the sentence as a whole. The Director does not challenge the decision to suspend or the bond which was imposed. The application for permission to appeal is in this case limited to the head sentence, not the sentence as a whole. The Crown is asking that this Court grant permission so as to address one element of the exercise of sentencing discretion. Although that would require that the sentence be set aside and the respondent be resentenced, it is effectively suggested that this Court may proceed to resentence by adjusting the head sentence and setting a non-parole period but by otherwise leaving the balance of the sentence in place.
Whilst it may be said that this approach demonstrates that any element of double jeopardy is limited, because the respondent will only confront the increased head sentence and non-parole period should he later breach the terms of the suspended sentence, this approach calls into question whether it is necessary for this Court to intervene.[29] Where there is limited scope for concern about double jeopardy that does not of itself justify intervention. On a Crown appeal more is required. And, it should be added, whilst the Director’s concession is important it does not bind this Court. This Court is not obliged to resentence in the manner proposed. The Director’s application exposes the respondent to the risk that his sentence may not be suspended.
[29] Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638, [13]-[14] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
Rhetorically, it may be asked:[30] why is it necessary to grant permission and why should this Court intervene in this case?
[30] Malvaso v The Queen (1989) 168 CLR 227, 234-235 (Deane and McHugh JJ); “The Court entrusted with the jurisdiction to grant or refuse leave … should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified.”
Though alcohol fuelled fighting underpins many cases, this case raises additional considerations, including the respondent’s favourable personal circumstances and the element of self-defence in the respondent’s offending which followed the victim’s use of a knife to cause injury. As was emphasised in argument, this case concerns unusual, if not unique, facts and a difficult sentencing exercise.
It cannot be said that, by correcting the head sentence but otherwise leaving suspension in place, any general point of principle will be addressed. That is because this case raises no general point of sentencing principle. This case concerns an erroneous head sentence. Whilst correction of the erroneous head sentence would provide some general guidance, that guidance can be given by indicating the correct approach without taking the additional step of granting permission.
The cases show that questions of degree arise when considering whether to grant the Crown permission to appeal against sentence.[31] That may be understood as requiring an evaluation of the extent to which the sentence is affected by error, and that may include the extent to which the sentence can be said to be manifestly inadequate. In this case the fact that the head sentence is well below the appropriate range is a relevant consideration in favour of intervention. In some cases that may be an important factor warranting intervention.[32]
[31] R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ, with whom Prior and Vanstone JJ at [60] and [78] relevantly agreed).
[32] In Everett v The Queen (1994) 181 CLR 295, 306 (McHugh J) it was emphasised that these kinds of cases “are likely to be rare”.
However, the constituent elements of the sentence in this case are not confined to a head sentence. It would be wrong to simply compare the head sentence which was imposed by the sentencing judge and the head sentence that should have been imposed. It is necessary to evaluate the sentence as a whole. Where the question of suspension is not now challenged by the Director that is an important factor militating against intervention. A suspended sentence of five months imprisonment, coupled with a bond to be of good behaviour for 18 months, is not so inadequate as to require intervention.
In addition, it is difficult to see why any failure to intervene would in the circumstances of this case affect confidence in the administration of justice. Whether or not this Court intervenes, the Director contends that the respondent should remain in the community on a suspended sentence. The Director’s approach suggests that the respondent should not be exposed to the risks associated with resentence.
Allowing this decision to stand would not undermine public confidence in the administration of criminal justice.
In the particular circumstances of this case, whilst the head sentence is substantially less than the head sentence that this Court regards as appropriate for offending by this offender, justice does not require that permission be granted, that the sentence be set aside and the respondent resentenced. This is not the kind of rare and exceptional case that warrants granting the prosecution permission to appeal sentence.
Conclusion
Accordingly, permission to appeal is refused.
DOYLE JA: The facts and circumstances relevant to the resolution of this application by the Director of Public Prosecutions for permission to appeal against sentence are set out in the reasons of Livesey P and David JA.
For the reasons they have given, I agree that the sentence imposed was manifestly inadequate. However, in my view, the disparity between the sentence imposed and the sentence which ought to have been imposed is such that the intervention of this Court is warranted so as to maintain appropriate sentencing standards.
The offending
The respondent was convicted of two offences: causing harm with intent to cause harm[33] (which carries a maximum penalty of 10 years imprisonment) and assault[34] (which carries a maximum penalty of two years imprisonment). For these two offences, the sentencing judge imposed a single penalty under s 26 of the Sentencing Act 2017 (SA), commencing with a notional starting point of five months imprisonment. As explained in the reasons of Livesey P and David JA, this was reduced to four months and eight days on account of the respondent’s guilty pleas, and was suspended upon the respondent entering into a bond to be of good behaviour for 18 months.
[33] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).
[34] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The first of these offences was a serious instance of the offence of causing harm with intent to cause harm, having regard in particular to the degree of violence (five or six punches to the victim’s face), the significant injuries suffered by the victim (including comminuted fractures to the nasal bones and left eye socket and resulting hypoglobus, a blown pupil, facial bruising, a number of broken teeth, and fluid to the lungs) and the element of retribution in the respondent’s motivation for the offending. There were some circumstances that warranted a measure of leniency: the respondent’s earlier attempts to defuse the situation, the victim’s role in initiating the violence, the relatively spontaneous and initially (partially) defensive nature of the respondent’s violence, the respondent’s conduct after the violence ended in calling emergency services and making admissions, and the respondent’s personal circumstances. However, even having regard to these circumstances, a starting point significantly greater than the one imposed by the sentencing judge was required. I agree with Livesey P and David JA that in order to achieve the purposes of the sentencing exercise, including the need to protect the community from, and to deter, alcohol-fuelled violence, a starting point of about two years imprisonment would have been appropriate.
As to the offence of assault, the respondent’s conduct was less serious. While the assault involved three blows (two punches and kick to the head), it is not known whether the victim suffered any injuries. I agree with Livesey P and David JA that a sentence of about six months imprisonment would have been appropriate for this offence.
Permission to appeal
Having formed the view that the sentence imposed was manifestly inadequate, it remains to determine whether this is an appropriate case in which to grant permission to appeal. The principles governing the exercise of the appellate court’s discretion to grant permission to appeal in a Crown appeal against sentence are well known and have been considered in a number of decisions of this Court.
In short, manifest inadequacy in the sentence imposed below does not, of itself, justify permission to appeal. The circumstances in which permission to appeal will be granted on a Crown appeal are often said to be confined to rare and exceptional cases.[35] The rationale for confining permission to such cases is the concern with double jeopardy; that is, the concern not to unnecessarily subject a defendant to the distress and anxiety of being twice vexed as a result of facing resentencing by an appeal court.[36]
[35] Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson & Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1]-[2] (French CJ, Crennan and Kiefel JJ); Cumberland v The Queen (2020) 94 ALJR 656 at [4]-[6], [33] (Bell, Gageler and Nettle JJ).
[36] Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [14] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
The rare and exceptional case is one where allowing the appeal is desirable in order to address an error of principle, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, or to establish and maintain adequate standards of sentence. It also extends to correcting a sentence which is so inadequate that it bespeaks error of principle, or would undermine public confidence in the administration of justice.[37]
[37] R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ); R v Nemer (2003) 87 SASR 168 at [23]-[27] (Doyle CJ); R v Harkin (2011) 109 SASR 334 at [19] (Gray & Sulan JJ), [77] (White J); R v Buttigieg (2020) 352 FLR 170; [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing); R v McIntyre (2020) 138 SASR 17 at [90]-[92] (Doyle J, Stanley and Hughes JJ agreeing); R v Jacques [2021] SASCA 94 at [29] (Kourakis CJ, Lovell and Bleby JJA).
The phrase ‘rare and exceptional’ does not direct attention to the number or proportion of Crown appeals in which the appellate court’s intervention might be appropriate, for these are matters which depend upon the sentencing practices of first instances judges, and the number and nature of the appeals brought by the Director. Rather, it requires a qualitative assessment. It directs attention to the nature of the error that is required to justify intervention. In this way, it is intended to distinguish the circumstances in which it might be appropriate to intervene to correct a manifestly inadequate sentence in a Crown appeal from the circumstances in which it might be appropriate to intervene to correct a manifestly excessive sentence in a defence appeal.
The line between a sentence which is ‘merely’ manifestly inadequate, and a sentence which is so far below the appropriate standard as to warrant a grant of permission in a Crown appeal is not a bright one. It involves questions of degree,[38] and, in a case such as the present, requires a balancing of the public interest in maintaining appropriate sentencing standards against the hardship to a defendant associated with being twice vexed.[39]
[38] R v Nemer (2003) 87 SASR 168 at [27] (Doyle CJ)
[39] R v Harkin (2011) 109 SASR 334 at [19] (Gray & Sulan JJ).
In the present case, there was a significant disparity between the sentence imposed below and what was necessary to achieve the purposes of the sentencing exercise. It would seem that the sentencing judge allowed the matters which justified a measure of leniency to overwhelm the considerations which in my view made this serious offending that called for a significant sentencing response in order to ensure the safety of the community, and to ensure a sufficient level of general deterrence. In my view, the sentence imposed involved a substantial departure from the permissible range. While the outcome of this appeal will be of little direct precedential effect, given that each case turns so much on its facts, it is nevertheless in the interests of the administration of justice that this Court reinforce the level of penalty that is appropriate in respect of offending involving alcohol-fuelled violence.

It is appropriate to attach some weight to the concern with twice vexing the respondent. However, in considering the hardship to him associated with intervention by this Court, it is also appropriate to take into account that any fresh sentence imposed by this Court would (for the reasons explained below) be suspended. The authorities emphasise the significance of the hardship associated with substituting a period of immediate custody for a suspended sentence on a Crown appeal. Noting the devastating impact of such a reversal of fortune, the appellate courts have shown a particular reluctance to intervene in such cases.[40] As a corollary of this reasoning, it seems to me that in circumstances where any fresh sentence would remain suspended, such that the practical consequences of this Court intervening so as to correct the head sentence will only be felt if the respondent were to breach the terms of his bond, the hardship to the respondent will be less significant.
[40] R v Hicks (1987) 45 SASR 270 at 273 (King CJ); R v Harkin (2011) 109 SASR 334 at [24] (Gray & Sulan JJ); R v Kong (2013) 115 SASR 425 at [102] (Kourakis CJ, Sulan and David JJ); R v Buttigieg (2020) 352 FLR 170; [2020] SASCFC 38 at [42] (Lovell J, Kourakis CJ and Nicholson J agreeing).
In my view, the balance in the present case should be struck in favour of intervention. The rationale for intervention is similar to that which justified intervention in R v Osenkowski,[41] namely that the sentence is sufficiently below the permissible range for offending of this type that it is appropriate that this Court intervene so as to vindicate and uphold sentencing standards.
[41] R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ), 213 (White J), 217 (Cox J).
In so concluding, I have not overlooked the fact that the Director’s appeal is against the sentence as a whole. The fact that there is no challenge to the suspension of the sentence, and that any fresh sentence that this Court might impose would also be suspended, is a relevant consideration. However, I do not think that this significantly diminishes the importance to the administration of justice of this Court maintaining proper sentencing standards so far as the head sentence is concerned. Indeed, for the reasons I have explained, the fact that the sentence will remain suspended lessens the hardship to the respondent associated with this Court’s intervention, and so favours intervention.
I would therefore grant permission to appeal, allow the appeal and proceed to resentence the respondent.
Resentence
In resentencing the respondent, I would use the notional starting points that I have identified: two years imprisonment for the offence of causing harm with intent to cause harm, and six months imprisonment for the assault offence.
I would make the sentence for the assault partially concurrent with the sentence for the offence of causing harm with intent to cause harm, giving a combined head sentence of two years and three months imprisonment. After allowing a reduction of slightly less than the 15 per cent maximum for the respondent’s pleas of guilty, I would impose a single sentence of two years imprisonment under s 26 of the Sentencing Act 2017 (SA). Having regard to the respondent’s personal circumstances, which weigh more heavily when fixing a non-parole period, I would fix a relatively modest non-parole period of one year.
The sentencing judge suspended the respondent’s sentence of imprisonment, having found good reason to do so in the circumstances I have mentioned above, and in particular the defendant’s lack of any criminal history and personal circumstances more generally. The judge considered that the protection of the safety of the community, and the other sentencing objectives, would be best achieved by permitting the respondent to remain in the community in order to work and support his family.
On appeal, there was no challenge to this aspect of the sentencing judge’s approach, and indeed the appellant accepted that even if this Court were to intervene and increase the respondent’s head sentence, it would nevertheless be appropriate to suspend that increased sentence. For essentially the reasons given by the sentencing judge, I would suspend the respondent’s sentence of imprisonment.
Conclusion
I would grant the Director’s application for permission to appeal against sentence, allow the appeal, set aside the sentence below and resentence the defendant in the manner indicated.