R v Zefi - [2017] SASCFC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ZEFI; R v JAKAJ
[2017] SASCFC 121
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
22 September 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE
Appeal against sentence for manslaughter.
David Zefi was sentenced to imprisonment for eight years and 10 months with a non-parole period of six years and 10 months. Rrok Jakaj was sentenced to imprisonment for five years and three months with a non-parole period of four years and one month.
Mr Zefi appeals against his sentence on the grounds that:
1.      he was sentenced on an incorrect factual basis, namely that he was not acting for a defensive purpose and that he introduced the knife into the fatal fight;
2.      the Judge erred in finding that there were no special circumstances to reduce the non-parole period to less than four fifths of the head sentence; and
3.      the Judge erred in declining to give him credit for his offer to plead guilty to manslaughter.
Mr Jakaj appeals on the grounds that:
1.      he was sentenced on an incorrect factual basis, namely that Mr Zefi was not acting for a defensive purpose and that Mr Zefi introduced the knife into the fatal fight;
2.      the Judge erred in declining to give him credit for his offer to plead guilty to manslaughter;
3.      the Judge, when considering the question of contrition, erred in referring to the significant resources dedicated to his defence;
4.      the Judge failed to give appropriate consideration to the appellant’s contrition;
5.      the Judge failed to have regard to numerous character references; and
6.      his sentence should be reduced to take into account the additional time he spent on home detention bail pending appeal outcomes.
Held (the Court), dismissing Mr Zefi's appeal:
1.      It was open for the Judge to find that Mr Zefi introduced the knife into the fight and that he was not acting for a defensive purpose.
2. There were not special circumstances under s 32(A)(3) of the Criminal Law Criminal Law (Sentencing) Act 1988 to reduce Mr Zefi’s non-parole period to below four fifths of the head sentence.
3.      It was open to the Judge to find that Mr Zefi’s offer to plead guilty was not indicative of contrition or remorse nor did it offer any significant utilitarian benefit, and therefore no weight should be given to it.
Held (the Court), allowing Mr Jakaj's appeal:
4.      It was open to the Judge to find that Mr Jakaj’s offer to plead guilty was not demonstrative of remorse nor did it offer any utilitarian benefit and therefore no weight should be given to it.
5.      The Judge did not err in referring to the significant resources dedicated to his defence.
6.      The Judge adequately took into account Mr Jakaj's character references and claims of contrition.
7. There were not special reasons under s 32A(3) of the Criminal Law Consolidation Act 1935 to reduce Mr Jakaj’s non-parole period to less than four fifths of his head sentence.
8.      The sentence should be reduced to take into account the additional time Mr Jakaj spent on home detention bail.
Criminal Law Consolidation Act 1935 (SA) s 32; Criminal Law (Sentencing) Act 1988 s 10C, referred to.
Western Australia v Auckram (2013) 229 A Crim R 397; R v Hansen (2011) 206 A Crim R 54; R v Franklin (2014) 114 SASR 206, discussed.
R v Clancy [2013] SASCFC 63; R v Franceschini (2015) 123 SASR 396; R v Gray [1977] VR 225; R v Li [2016] SASCFC 152; R v Martin (2007) 99 SASR 213; R v Stehbens (1976) 14 SASR 240; R v Taylor [2016] SASCFC 54; R v Thompson (1975) 11 SASR 217; The Queen v Carradine [2001] VSCA 163, considered.

R v ZEFI; R v JAKAJ
[2017] SASCFC 121
Court of Criminal Appeal: Kourakis CJ, Blue and Lovell JJ

THE COURT: This is an appeal against sentence.
The appellants, David Zefi and Rrok Jakaj, along with two others, were found guilty by a jury of the manslaughter of Christopher Hatzis who was stabbed with a knife multiple times, and died, in the early hours of Saturday 4 August 2012 in Light Square.
Mr Zefi was sentenced to imprisonment for eight years and 10 months with a non-parole period of six years and 10 months. Mr Jakaj was sentenced to imprisonment for five years and three months with a non-parole period of four years and one month.
Mr Zefi’s primary ground of appeal is that the Judge erred in sentencing him on the factual basis that in stabbing the deceased he committed an unlawful and dangerous act as opposed to engaged in excessive self-defence, and further that Mr Zefi, and not the deceased, introduced the knife to the fight. Mr Zefi also contends that the Judge erred in finding that there were no special circumstances which enlivened the Judge’s discretion to impose a non-parole period of less than the mandatory four-fifths of the head sentence, and that he should have been given credit for his offer to plead guilty to manslaughter.
Mr Jakaj adopts Mr Zefi’s primary ground of appeal and also contends that the Judge erred in not finding special circumstances and refusing to give him credit for his offer to plead guilty to manslaughter. He also contends that the Judge failed to have adequate regard to his contrition and that his sentence should be reduced to take into account additional time spent on home detention bail since he was sentenced.
Mr Zefi’s appeal against sentence
Mr Zefi was sentenced on 7 October 2014 to a term of imprisonment of eight years and 10 months with a non-parole period of six years and 10 months. Mr Zefi appeals against his head sentence and non-parole period on three grounds namely:
1.The Judge erred in proceeding to sentence him on an incorrect factual basis, and specifically that:
1.1.   Mr Zefi was not acting for a defensive purpose; and
1.2.   Mr Zefi introduced the knife into the fatal fight.
2.The Judge erred in finding that there were no special reasons under s 32A(3) of the Criminal Law (Sentencing) Act 1988 (the Act) to reduce the non-parole period to less than four fifths of the head sentence. Mr Zefi contends that there were two good reasons to do so, namely:
2.1.   the deceased introduced the knife into the fatal fight; and/or
2.2.   the deceased’s aggressive and violent conduct on the night, including the fight within Savvy nightclub and punching another male immediately before the fatal altercation.
3.The Judge erred in declining to give Mr Zefi credit for his offer to plead guilty to manslaughter.
Ground 1
The law in relation to the duty of a judge when sentencing a prisoner after a jury verdict is well settled. When, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the sentence rests with the judge, not with the jury. A judge is not required to sentence on the factual basis most favourable to the prisoner. A judge is entitled to form his or her own view of the facts, provided that view is consistent with the jury verdict. However a judge, in forming his or her own view of the facts, is still to have regard to the general principles of proof in criminal cases and must give the prisoner the benefit of any reasonable doubt when forming that view.[1]
[1] Cheung v The Queen (2001) 209 CLR 1 at 9-11; R v Clancy [2013] SASCFC 63; R v Li [2016] SASCFC 152; R v Martin (2007) 99 SASR 213; R v Stehbens (1976) 14 SASR 240 at 245; R v Thompson (1975) 11 SASR 217.
In this case the sentencing submissions before the Judge proceeded on the basis that there were two possible bases for the verdict of manslaughter. First, Mr Zefi used excessive force in defending himself or secondly he performed an unlawful and dangerous act but did not form the requisite intention to kill or cause grievous bodily harm. A major issue at the trial was the question of who introduced the knife to the fight. Self-defence was harder for Mr Zefi to argue if he introduced a knife into what was a “fist fight”.
The Judge sentenced Mr Zefi on the basis that the fight was started by one of Mr Zefi’s associates; that Mr Zefi introduced the knife to the fight; that the deceased was held or pinned down during the fight and, but for this, he may have been able to escape. The Judge sentenced Mr Zefi on the basis that he committed an unlawful and dangerous act.
In finding that the deceased did not start the fight the Judge implicitly rejected Mr Zefi’s submissions that he acted in excessive self-defence. The Judge found specifically that he introduced the knife into the fight. The Judge indicated during sentencing submissions on three occasions that her Honour intended to sentence him on the basis outlined above. Both the appellant and the respondent in written submissions before the Judge had submitted that the appropriate basis for sentencing was that of manslaughter by the use of excessive self-defence.
In her Honour’s sentencing remarks the Judge did not elaborate on the evidence upon which she relied in concluding beyond reasonable doubt that Mr Zefi was the one who introduced the knife to the fight and that the deceased was not the instigator of the fight.
Appellant submissions
The facts of the incident are set out in our reasons for judgment on the appeals against conviction of HN and Dario Stakaj delivered contemporaneously with these reasons.[2]
[2] R v Stakaj; R v N, H [2017] SASCFC 120.
Mr Zefi gave evidence at trial that Mr Hatzis introduced the knife into the fight. He acknowledged that he caused some of the wounds to Mr Hatzis but said that they occurred in the course of a struggle with him during which he feared for his life. He wrestled with Mr Hatzis and the wounds were inflicted during the course of the struggle. He denied using excessive force. There was no direct evidence that Mr Zefi was in possession of a knife before the altercation started.
Mr Zefi submitted that, on the facts of the case, including his own evidence, the Judge could not be satisfied beyond a reasonable doubt that he introduced the knife into the fight.
To support that positon Mr Zefi submitted that Mr Hatzis, after he had left the nightclub, armed himself with the knife, which he retrieved from his jacket that he had earlier placed in Playhouse Lane before entering the night club. Mr Zefi submitted that Mr Hatzis had left his jacket in the alley rather than wearing it into the club to avoid metal detection screening at the point of entry to the club. David Russo, the deceased’s friend and with whom he was in company that evening, gave evidence that Mr Hatzis insisted on leaving the jacket in the alley to avoid Mr Russo having to pay the cloakroom fee. Mr Russo had agreed to fund Mr Hatzis for the evening out. Evidence from security officers employed by the club established that there was no cloakroom in the club.
CCTV footage shows Mr Hatzis at 2:26:16am running down into Playhouse Lane. He is seen to return, walking rather than running, less than a minute later at 2:27:14am. Mr Zefi submitted that Mr Hatzis’ action of running into the lane indicated his perceived level of danger but his walking out of the lane indicated that he was now armed and therefore perceived himself to be in less danger. The CCTV footage does not show Mr Hatzis carrying anything, nor wearing his jacket. However the footage is of poor quality and the possibility that the knife was concealed on his person could not, on that evidence alone, be excluded.
Mr Zefi also relied upon the aggressive behaviour of Mr Hatzis in the night club. He was removed from the night club at 2:22:37am after being involved in an altercation on the dancefloor with K. K had been removed from the nightclub about five minutes before Mr Hatzis. K and Mr Hatzis were, before the altercation, unknown to each other. The altercation continued, verbally, outside the club. Two witnesses described K as threatening to stab or kill Mr Hatzis whilst another witness described Mr Hatzis as pacing up and down and jumping around saying that he would bash or smash him. Mr Russo described Mr Hatzis as being drunk and very angry at the time.
Mr Zefi submitted that the evidence of the forensic pathologist Ms Karen Heath confirmed that the injuries suffered by the appellant to his right hand during the fight were consistent with “defensive wounds”. He suffered a superficial 9mm laceration over the top of his right little finer and a superficial 6mm laceration over the upper surface of his right ring finger. It was submitted that these injuries were consistent with Mr Zefi trying to take hold of the knife that Mr Hatzis allegedly possessed.
Mr Zefi further submitted that the jury finding was of itself inconsistent with his having introduced the knife to the fight. If he had introduced the knife and stabbed the victim eight to 13 times whilst the victim was being held, the jury, it was submitted, would have found that he must have formed the intention at least to cause grievous bodily harm and therefore convicted him of murder. Mr Zefi argued that this made it more likely that the jury’s verdict of manslaughter was made on the basis that the appellant did not introduce the knife to the fight.
Mr Zefi submitted that taking those matters into account, it could not be established beyond a reasonable doubt that he introduced the knife into the fight.
Respondent’s submissions
The respondent pointed to the fact that the Judge, during the summing up, had instructed the jury that a verdict of manslaughter on either basis, namely excessive self-defence or unlawful and dangerous act, was open on the facts. At trial there had been no complaint by defence counsel as to that approach taken by the Judge. On the contrary, Mr Zefi submitted that the number of wounds, their nature and their location told against an intention to kill or cause serious harm. The respondent submitted that it was therefore difficult for Mr Zefi to justify the submission that the factual basis found by the Judge for sentencing purposes was not open.
The respondent submitted that there was direct evidence from Mr Russo that Mr Hatzis did not have a knife. The respondent pointed to the fact that between Mr Hatzis emerging from the lane at 2:27:14am and the fatal fight commencing at around 2:30:30am there were two incidents during which he had an opportunity to produce the knife but did not do so. It was submitted that his failure to produce the knife during either of these incidents indicated that he, in fact, did not possess the knife.
The first incident was the altercation with Angel Dodaj in which Mr Hatzis was struck in the face; he retaliated by punching Mr Dodaj. No knife was produced. The second incident occurred when Mr Hatzis and Mr Russo were set upon by a larger group of people including Mr Zefi but Mr Hatzis did not produce the knife. Rather, Babatundji Williams-Fullwood gave evidence that when Mr Hatzis and Mr Russo were set upon, that being immediately prior to the fight, Mr Hatzis put his arms up at about his shoulder height with his palms facing towards his soon to be assailants and backed away from the group. Such an action, it was submitted, was inconsistent with his having a knife. Mr Zefi submitted that these incidents were not inconsistent with Mr Hatzis having the knife but could be explained by Mr Hatzis having decided that at that stage he did not need to produce the knife.
The respondent submitted that reliance by Mr Zefi on the CCTV footage in which Mr Hatzis is seen to run down the laneway is misplaced because Mr Zefi’s submission fails to have regard to the fact that at some stage Mr Hatzis did, in fact, retrieve his jacket. It was found, after the stabbing, outside of the laneway. It was submitted that the CCTV footage was consistent with Mr Hatzis entering the wrong laneway when looking for his jacket. There was another laneway nearby not covered by CCTV.
In relation to the superficial wounds suffered by Mr Zefi, the respondent submitted that the wounds were non-specific. They were not, it was submitted, consistent with Mr Zefi taking the knife from Mr Hatzis.
On the question of Mr Zefi’s intention if he had introduced the knife into the fight, the respondent pointed to Mr Zefi’s submission at trial that the number of wounds, their nature and their location told against an intention to kill or cause serious harm and were consistent with proportionate self-defence. For Mr Zefi now to suggest that the jury could not have possibly entertained a doubt about his intention and that the jury must have therefore found him guilty of manslaughter on the basis that he believed that he was defending himself was to ignore his own submissions at trial.
The respondent submitted that there was ample evidence on which the Judge could be satisfied beyond a reasonable doubt that Mr Zefi introduced the knife into the fight.
Discussion
As discussed earlier a judge imposing sentence following a trial is obliged to come to his or her own view of the facts, consistent with the jury verdict.[3] The view of the facts on which a judge proceeds must give the accused the benefit of any reasonable doubt held about the facts. A judge is not bound to impose a sentence on a version of the facts most favourable to the accused if he or she is satisfied beyond reasonable doubt of other facts.
[3] R v Li [2016] SASCFC 152.
In our view there was evidence capable of supporting the findings that her Honour made. Mr Zefi argued that there was a view of the evidence that is more favourable to him. The Judge was not bound to follow that line of reasoning.
A jury’s verdict must necessarily be obscure in circumstances such as this. A sentencing judge must make findings for the purpose of sentence. There are evidential difficulties on either of the postulated foundations for the verdict. On the unlawful and dangerous act basis Mr Zefi might be thought fortunate to have escaped a finding of intent, at the very least to cause grievous bodily harm. Excessive self-defence involves the difficulty that, other than the testimony of Mr Zefi, all of the evidence denies the possibility that Mr Hatzis introduced the knife. Even though a sentencing judge is entitled to make findings consistent with the jury’s verdict, for the purpose of sentence it may not always be possible to make a finding beyond reasonable doubt on which of several alternative bases consistent with the verdict the defendant should be sentenced. In this case, for example, a yet further alternative is that the verdict was based on excessive self‑defence despite finding that Mr Zefi introduced the knife on the basis that Mr Hatzis was the aggressor and getting the best of the fist fight.
The Judge heard the evidence. We are satisfied that the evidence in the case was capable of supporting the Judge’s findings. It was open to her Honour to find beyond a reasonable doubt that Mr Zefi introduced the knife into the fight. It was open to her Honour to find that Mr Zefi was not acting in self-defence. The evidence supported those findings. The description of the wounds sustained by Mr Zefi in his fight with Mr Hatzis are referred to in [61] to [62] of our reasons for judgment in the appeals of HN and Dario Stakaj.[4]
[4] R v Stakaj; R v N, H [2017] SASCFC 120 at [61]-[62].

The wounds to Mr Zefi’s arms and hands, and the absence of wounds to his torso, are more consistent with accidental self-infliction as he attacked Mr Hatzis than they are with an armed attack by the latter.
No error has been demonstrated. We reject this ground of appeal.
Ground 2
It was conceded that ground 2 could not succeed if ground 1 failed. We therefore reject ground 1.
Ground 3
Background
During the course of sentencing submissions counsel for David Zefi informed the Judge that on the evening prior to the commencement of the trial her client “offered to plead guilty to manslaughter on the basis of the evidence he gave at trial, namely, that he had stabbed the deceased and that he had done so because he believed he was going to be killed”.
The fact of the offer was not disputed. The prosecution rejected the offer. It was accepted before the Judge that Mr Zefi could have pleaded, but did not plead, guilty to manslaughter in front of the jury. Mr Zefi conceded that the decision not to plead guilty in front of the jury had a “forensic aspect to it”. Counsel for Mr Zefi during the course of sentencing submissions identified that the offer could potentially be considered as mitigatory in two ways. First, as evidence of contrition and secondly as offering a “utilitarian benefit” in that it would save the necessity of a trial. The prosecutor however submitted that no credit should be given as the plea was offered as part of a “damage” control rather than contrition and that the evidence given by Mr Zefi at trial was inconsistent with the offer to plead.
When sentencing Mr Zefi the Judge said:
It has been put on behalf of you Zefi, Jakaj and [HN] that you are remorseful and contrite for your part in this killing. I must say I find that hard to accept in circumstances where you have lied about your involvement either to the police or to the court and in circumstances where there was such a concerted effort after the event to avoid responsibility; and the significant resources marshalled by you in an attempt to secure each of you an undeserved acquittal. Indeed, the evidence that as you left the scene some of you, at least, were congratulating yourselves on what you had done and the evidence that you, Jakaj, were later bragging to your girlfriend about what you had done, tends to speak louder than statements made two years or so later by your counsel. However, I am quite sure that you all regret your part in this event, if mainly because of the impact it has had and will have on yourselves and your family.
You, Zefi, and you, Jakaj, say that you should be given credit for offering to plead guilty to manslaughter prior to trial. I do not consider that you have earned that credit. The basis upon which your pleas were offered has been rejected either by the jury or by me – probably both – and I see your offers as tactical and a recognition that you were in danger of being convicted for murder. You both fought the trial on the basis that you were guilty of nothing.
Mr Zefi submitted that the Judge erred in failing to give the appellant any credit for his offer to plead guilty.
Legal principles
The legal principles as to whether credit should be given to offenders who offer to plead guilty rather than actually entering a guilty plea were discussed in Western Australia v Auckram.[5] Buss JA (with whom Mazza AJ and Hall J agreed) summarised the principles. He stated:[6]
[5] (2013) 229 A Crim R 397.
[6] Ibid 410-412, [95]-[102].
It is a well-established sentencing principle that where:
(a)an offender is convicted of an offence (the subject offence) after trial;
(b)the offender previously offered to plead guilty to the subject offence but the prosecution rejected the offer;
(c)the prosecution proceeded to trial or continued with the trial on a more serious offence than the subject offence; and
(d)the offender is acquitted of the more serious offence,
the rejected offer is a mitigating factor to be taken into account in the exercise of the sentencing discretion. (See R v Marshall [1995] 1 Qd R 673 (Fitzgerald P), at 673-674 (Pincus JA); R v Oinonen [1999] NSWCCA 310 at [15]-[18] (Grove J, Spigelman CJ and Sully J agreeing): R v Cardoso (2003) 137 A Crim R 535 at [14]-[22] (Hidden J, James J agreeing); Hooper v The Queen (2003) 27 WAR 264 at [34] (Steytler P); R v Wiggins [2003] QCA 367 (McMurdo P, Dutney and Philippides JJ agreeing); R v Lyon [2006] QCA 146 at [27]-[28] (Jerrard JA, Douglas J agreeing); DF v The Queen [2006] NTCCA 13 at [17] (Riley J, Martin (BR) CJ and Angel J agreeing); Spooner v Western Australia [2008] WASCA 86 at [18]-[19] (Steytler P, McLure and Buss JJA agreeing); R v Jones (2010) 108 SASR 479 at [203]-[210] (Peek J); R v Hansen (2011) 206 A Crim R 54 at [8]-[10] (Vanstone J, Sulan J agreeing), at [26]-[38] (White J); R v Franklin (2012) 114 SASR 206 at [43]-[50] (White J, Nicholson J agreeing); Petrelis v Western Australia [2012] WASCA 235 at [55], [58]-[59] (Buss JA, Mazza JA agreeing); Carr v The Queen [2012] VSCA 299 at [70]-[73] (Neave and Redlich JJA and Williams AJA).
An offer to plead guilty is to be distinguished from a mere “overture” or “sounding out” by an offender’s legal representatives, either with or without instructions.
The weight to be given to an offer to plead guilty to the subject offence, as a mitigating factor, will depend on all the circumstances of the particular case including, for example:
(a)when the offer was made;
(b)the form and precise terms of the offer, including any conditions attached to it and the factual basis on which it was made;
(c)whether the offender entered a plea of guilty to the subject offence when he or she was arraigned at the trial;
(d)whether and, if so, to what extent the offender gave evidence at the trial, or conducted his or her defence, in a manner inconsistent with the offer;
(e)whether and, if so, to what extent the trial judge makes findings of fact, for the purposes of sentencing, that are inconsistent with the offer; and
(f)whether and, if so, to what extent the making of the offer reflects the offender’s acceptance of responsibility and remorse or contrition.
These examples are not, of course, an exhaustive statement of the relevant circumstances.
However, the reasonableness or unreasonableness of the State’s rejection of an offer to plead guilty to the subject offence is not a relevant consideration in deciding upon the weight to be given to the offer as a mitigating factor. See Hansen at [34].
The making of an offer to plead guilty to the subject offence will be a mitigating factor even though the offender did not enter a plea of guilty to the subject offence when he or she was arraigned.
If the offender does not enter a plea of guilty to the subject offence upon arraignment, that fact will not of itself diminish the weight to be given to an earlier offer. See Marshall at 674-675; Cardoso at [19]-[21]; Jones at [205]-[210]; Hansen at [34]. However, the absence of a plea of guilty upon arraignment may diminish the weight to be given to an earlier offer if the absence of the plea, either alone or with other facts, indicates that:
(a)the offender does not accept responsibility for the offending or is not remorseful or contrite; or
(b)any acceptance of responsibility, or any remorse or contrition, is limited.
If the offender enters a plea of guilty to the subject offence upon arraignment, this will ordinarily be an additional mitigating factor because the offender will have in effect reiterated his or her earlier offer. Also, the entry of the plea of guilty, either alone or with other facts, may establish or reinforce the genuineness or completeness of the offender’s acceptance of responsibility and remorse or contrition.
The making of an offer to plead guilty to the subject offence will demonstrate a willingness to facilitate the course of justice and will have pragmatic value (for example, benefits to the State from being relieved of the burden of proof and benefits to witnesses from being relieved of the burden of giving evidence and being cross-examined), even if the offer is not accompanied by an acceptance of responsibility or remorse or contrition.
What amounts to an “offer to plead”?
Mr Zefi submitted that he should be given credit for his offer to plead guilty to manslaughter before the trial because it matched the verdict which was ultimately delivered by the jury.
In R v Hansen, Vanstone J (with whom Sulan J agreed) observed:[7]
In my view there is no rule of practice requiring that credit be given for such an offer in these circumstances. Had the appellant been able to point to a plea of guilty following the preliminary examination, or on an arraignment day, or at a subsequent hearing, then there is no doubt that, all things being equal, he would have been able to claim credit for that plea.
[7] (2011) 206 A Crim R 54, 56 [8] (Vanstone J).
The issue of credit for an “offer to plead” arose again in R v Franklin. Sulan J observed:[8]
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 characterised 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 cases, 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.
… 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.
White J agreed with Sulan J that the appeal should be dismissed but added further reasons. His Honour noted two relevant matters:[9]
The first is the nature and form of the offer relied upon. In Hansen, I suggested that any offer relied upon for this purpose should be an actual offer and not something less such as a sounding out or an invitation to treat. It should be expressed in clear terms and preferably in writing. Counsel should keep in mind that, depending upon the circumstances, they may not be entitled to inform the court of the contents of without prejudice or off the record discussions. It is for this reason that the entry on arraignment of a formal plea to an alternative offence of which the defendant is ultimately convicted will carry more weight, as may other kinds of formal and open offers.
…
The second relevant matter is the appellant’s post-offer conduct. At the trial the only issue concerning the two drug offences was the appellant’s assertion that he believed the child to be an adult. A plea of guilty by the appellant to the offences of supplying cannabis to the child would have involved an acknowledgement by him that he did not have a reasonable belief that the person to whom he made the supply was an adult. Yet, in his sworn evidence at the trial, the appellant asserted that at the time of the supply he had believe that person to be about 20 years old. He continued that assertion after being convicted when being assessed by the psychologist, Dr White, in relation to the submissions to be made on his behalf on sentence. Post-offer conduct of this kind limits markedly the value of any pre-trial offer. That was the view which the sentencing judge took…
(Citations omitted)
[8] (2014) 114 SASR 206, 212-213 [23]-[26] (Sulan J).
[9] Ibid 215, [45]-[49] (White J).
There is no conflict between the proposition that there is “no rule of practice requiring that credit be given” for a mere offer to plead guilty and the proposition that an offer to plead guilty to an offence of which a defendant is ultimately convicted is “a mitigating factor to be taken into account”. The propositions are reconcilable because, even though the offer is a relevant consideration, the weight it is accorded will vary greatly according to the circumstances and in some instances a judge may properly decide to make no reduction at all.
It is important to establish, with some precision, the terms of any offer made by an accused prior to trial. Entry of the plea on arraignment to the alternative charge is preferable. Conducting the trial contrary to the terms of an offer does not disentitle a sentencing judge from considering the question of credit, but it markedly affects the value of any pre-trial offer.
As discussed earlier, an offer to plead guilty, even if not acknowledged on arraignment in front of the jury, is a mitigating factor. However the weight, if any, to be given to the offer is clearly a matter for the sentencing judge and dependent on the particular facts of the case. When the offence of which a defendant is ultimately convicted is a common law or statutory alternative to the offence charged, and there is therefore no reason why the plea to the alternative cannot be made on arraignment, a mere offer not matched by such a plea necessarily loses much of its weight. That is the case with respect to a plea to manslaughter on a charge of murder.
There is no rule of practice that requires that credit must be given.[10] Much depends upon the facts and circumstances of the case.
Appellant’s submissions
[10] R v Hansen (2011) 206 A Crim R 54, 56-57 [8]-[10] (Vanstone, Sulan JJ); R v Franklin (2012) 114 SASR 206.
During the course of sentencing submissions counsel for Mr Zefi correctly identified the two bases that potentially gave rise to credit being given for the offer.
Mr Zefi conceded that as he did not actually enter a guilty plea, s 10C of the Criminal Law (Sentencing) Act 1988, which prescribes the cascading discounts available for entering a guilty plea at certain times, was not enlivened. The offer to plead is to be considered as part of the general sentencing factors, particularly s 10(1)(g) as evidence of contrition, and also as evidence of cooperation under s 10(1)(h).
Mr Zefi conceded that making an offer to plead guilty does not show as much remorse or acceptance of responsibility as entering the plea. However, it was submitted that it does not follow that a mere offer to plead guilty shows no remorse or contrition. Mr Zefi accepted that an offer to plead guilty may, in some circumstances, not depict much remorse. However, here the willingness to facilitate the course of justice remained a factor to be considered. He submitted that the sentencing Judge erred in not considering that an offer to plead guilty demonstrated a “utilitarian value” namely that he was willing to facilitate the course of justice sufficient to allow some credit.
Mr Zefi submitted that the rejection of the factual basis upon which the offered plea was made does not necessarily disentitle him to any credit to which he might otherwise have received. He conceded that whilst it may reduce the amount of credit available, it should not automatically extinguish it entirely. He submitted that the Judge therefore erred when her Honour refused to grant credit because the basis of his plea had “been rejected by the jury or by [the judge] – probably both”.
Respondent’s submissions
The respondent submitted that the Judge was correct in declining to grant Mr Zefi credit because the evidence he gave at trial was inconsistent with his offer. The respondent submitted that Mr Zefi’s evidence that he stabbed Mr Hatzis in order to preserve his own life would, if accepted, have led to a full acquittal. The respondent submitted that if his evidence was to be consistent with his offer, he would have needed to go a step further and accept that his decision to stab Mr Hatzis was excessive in the circumstances.
The respondent submitted that Mr Zefi’s decision not to plead guilty to manslaughter, or alternatively agree the facts forming the basis of the plea offer, together with the inconsistency of his evidence, removed all utility in facilitating the course of justice.
The respondent submitted that, absent the plea being made in front of the jury, any potential utility the plea could have offered by way of providing implicit admissions for the jury to consider was not realised. Here there was no “utility” in the offer as Mr Zefi’s offer had no meaningful consequences.
Discussion
The “offer” was not clearly delineated. No plea was entered in front of the jury. The Judge was not told the factual basis for the offered plea. It appears from the sentencing submissions that the factual basis of any plea had not been discussed between counsel.
It can be inferred that the offer to plead guilty to manslaughter was likely to have been on the basis of excessive self-defence coupled with the fact that the appellant did not introduce the knife to the fight. That fact has been proved beyond reasonable doubt against the appellant. The offer was rejected by the prosecution. As the Judge observed at trial, Mr Zefi “fought the trial on the basis” that he was guilty of nothing. This offer was inconsistent with the Judge’s eventual findings.
If Mr Zefi had pleaded guilty to manslaughter before the jury on the above basis, it would have been an acknowledgment that he had acted excessively. However at trial, in his evidence, he only acknowledged having stabbed the victim once after he had wrestled the knife from him. He said that he may have stabbed him more than once but when the threat had passed, he ran off, and as he looked back the victim was fighting with someone else and yelling “come on, cunt” and still wanting to fight. His evidence at trial is inconsistent with his offer to plead guilty to manslaughter.
Implicit in the Judge’s sentencing remarks is an acceptance that an offer to plead guilty, made before trial, is a matter to be considered during the exercise of the sentencing process. The Judge considered that Mr Zefi had not “earned” the credit and her Honour explained why she came to that conclusion. It was open on the evidence for the Judge to come to that conclusion because the prosecution having rejected Mr Zefi’s proffered basis, he chose to mount a defence not only to the charge of murder but also unsuccessfully to the alternative of manslaughter.
It is correct to observe that the Judge did not specifically refer to the “utilitarian benefit” as a basis for considering the question of credit. There is however no requirement that the sentencing Judge do so. Moreover, the utilitarian benefit of the offer was lost because Mr Zefi did not, as he might have, plead guilty to manslaughter or identify a factual basis for his plea or offered plea. Even if the offer were accepted by the prosecution, it would not bind the sentencing Judge and, in the circumstances of this case, a disputed fact hearing after the trial of Mr Zefi’s co-accused was very probable.
What is clear from the sentencing remarks is that the Judge considered the factors relevant to the exercise of the discretion, including whether there was a “utilitarian benefit” in relation to this offer. The Judge specifically referred to the fact that she did not accept the factual basis put forward in relation to the plea. Further the Judge noted that at trial Mr Zefi put forward a case inconsistent with the offer. Clearly the Judge was aware that the offer to plead guilty was made extremely late in the proceedings, namely shortly before the trial commenced.

In our view there was ample evidence available for the Judge to find that Mr Zefi was not contrite or remorseful. Further, it is clear from the sentencing remarks that the Judge considered the question of the utilitarian benefit of the offer and concluded that no benefit had been established. Such a finding was open on the facts.
No error has been demonstrated. We reject this ground of appeal.
Conclusion
We dismiss the appeal by Mr Zefi.
Mr Jakaj’s appeal against sentence
Mr Jakaj was sentenced to a term of imprisonment of five years and three months with a non-parole period of four years and one month. On appeal against sentence only five of the original nine grounds of appeal were maintained. With respect to their numbering in the original Schedule of Grounds of Appeal, the extant grounds are:
3The Learned Sentencing Judge erred in having regard in a way adverse to the Applicant Jakaj “the significant resources marshalled by you in an attempt to secure each of you an underserved acquittal” despite the fact that those same resources secured an acquittal for murder.
…
5The Learned Sentencing Judge erred in respect of the consideration of the Applicant’s contrition in particular by characterizing it as “statements made two years or so later by your counsel” but also by;
a. Not having regard to the numerous character references tendered by consent which recount the Applicant Jakaj’s expressions of remorse; and
b. Not having regard to the Applicant Jakaj’s offer to apologize in person to the father of the Deceased.
6The Learned Sentencing Judge erred in giving the Applicant Jakaj no credit for his early and continuing offer to plead guilty to manslaughter.
7The Learned Sentencing Judge erred in finding beyond reasonable doubt that the Accused Zefi introduced the knife and that self-defence played no role in the actions of the Accused Zefi.
8The Learned Sentencing Judge erred in finding that special reasons did not exist to fix a shorter than the prescribed non-parole period pursuant to section 32A of the Criminal Law (Sentencing) Act 1988.
During the course of the appeal a further ground was added with the consent of the respondent. This became ground 10.
There is considerable overlap of the legal principles between the appeals of Mr Zefi and Mr Jakaj. It is therefore convenient to deal with the common grounds first.
Ground 7
We have already concluded in Mr Zefi’s appeal that it was open to the Judge to find that it was Mr Zefi who introduced the knife into the fight. For the reasons articulated in that appeal we reject this ground of appeal.
Ground 6
The legal principles relating to a pre-trial offer to plead guilty to a lesser offence are set out earlier in this judgment.
Mr Jakaj offered to plead guilty to manslaughter prior to the committal hearing and again prior to the commencement of the trial. It was accepted that the offer to plead guilty to manslaughter was never reduced to writing, nor was a factual basis upon which the plea would be entered resolved. However it was submitted that the offer was not a mere testing of the waters but was a genuine offer. Counsel submitted that the prosecution were sought out by Mr Jakaj’s legal representatives very early in the proceedings to discuss a plea. It was submitted that this displayed a level of commitment on his behalf to the offer to plead guilty and therefore credit should have been granted in his favour when sentencing him, particularly given that he was ultimately convicted of the very offence to which he offered to plead guilty.
The respondent submitted that it was doubtful whether the “expressions of a preparedness [of Mr Jakaj] to plead guilty” amounted to an offer as they were too vague. No factual basis was ever put forward to resolve the matter. Further it was submitted that, even if it was an “offer”, Mr Jakaj did not enter a plea in front of the jury and ran the trial, as did Mr Zefi, on the basis that he was not guilty of any offence. This included Mr Jakaj relying, at trial, on his record of interview with the police which was inconsistent with his suggested plea to manslaughter.
Given that no factual basis was ever suggested to the prosecution, it is difficult to say that the verdict of manslaughter was consistent with his offer.[11] For example was the “offer” on the basis of Mr Zefi introducing the knife or on some other, and if so what, basis?
[11] The Queen v Carradine [2001] VSCA 163. It appears that the jury verdict was consistent with the offer to plead.
In circumstances such as the present case, where alternative paths to a verdict of manslaughter are available, it is important, as discussed in Franklin[12] and Hansen,[13] that the factual basis of any proposed plea be made known. Whilst a verdict of manslaughter was returned by the jury, without factual details of the offer being agreed, it is impossible to say that the verdict was “consistent” with the offer to plead.
[12] (2014) 114 SASR 206.
[13] (2011) 206 A Crim R 54.
As observed above, the Judge clearly considered the questions of remorse and the “utilitarian benefit” of an offer when sentencing Mr Jakaj. The Judge rejected the submission that, by his offer to plead guilty to manslaughter, he demonstrated remorse or that his offer had any utilitarian benefit. Such findings were open to the Judge. No error has been shown and we reject this ground of appeal.
Ground 3
This ground overlaps with grounds 5 and 6.
Mr Jakaj contends that the Judge erred in having regard to the fact that he marshalled “significant resources” in an attempt to secure an “undeserved acquittal”.
It has been put on behalf of you Zefi, Jakaj and [HN] that you are remorseful and contrite for your part in this killing. I must say I find that hard to accept in the circumstances where you have lied about your involvement either to the police or to the court and in circumstances where there was such a concerted effort after the event to avoid responsibility; and the significant resources marshalled by you in an attempt to secure each of you an underserved acquittal. Indeed, the evidence that as you left the scene some of you, at least, were congratulating yourselves on what you had done and the evidence that you, Jakaj, were later bragging to your girlfriend about what you had done, tends to speak louder than statements made two years or so later by your counsel. However, I am quite sure that you all regret your part in this event, if mainly because of the impact it has had and will have on yourselves and your family.
Mr Jakaj submitted that contrition should not be excluded simply because an accused has chosen to contest the charge.[14] At a high level of generality, that proposition can be accepted. He further submitted that in this matter the resources had to be expended to defend the charge of murder of which he was acquitted.
[14] R v Gray [1977] VR 225, 231.
It is correct to observe that Mr Jakaj had to spend considerable resources defending the charge of murder. However the comment by the Judge needs to be seen in the context of her Honour’s sentencing remarks as a whole. The Judge was not criticising Mr Jakaj for exercising his legal right to contest the charges. The Judge observed that the resources also went to an attempt to obtain an outright acquittal, not just an acquittal of the charge of murder. Seen in that context the Judge was looking at the conduct of Mr Jakaj in the context of the entire case when assessing whether to allow him any discount for contrition and/or remorse.
No error has been demonstrated. We reject this ground of appeal.
Ground 5
Mr Jakaj contends that the Judge failed, when considering the question of contrition and remorse, to have regard to the numerous character references tendered on his behalf and the offer made by him to meet with the father of the deceased and apologise in person.
It is correct to observe that the Judge did not specifically refer to the character references or the proposed apology to the deceased’s father. In the context of sentencing remarks it is not necessary for the Judge to refer to every submission made by counsel.
The Judge’s sentencing remarks need to be read as a whole. The Judge during the course of her Honour’s remarks mentioned the young age of the offenders as an “outstanding feature” of the crime. The Judge also stated:
Another notable feature of the backgrounds of each of you is that you have no prior convictions and, in the case of three of you, it is clear that you have considerable family support and a real chance of rehabilitation. I know nothing of your background, Stakaj, except that you showed promise at soccer.
The Judge then dealt with the question whether Mr Jakaj had shown remorse and contrition. The Judge found that he had not.
Further the Judge stated, in relation to this appellant:
… there are persons who speak well of you and that you have strong family support and you will likely have employment available to you upon your release.
The Judge’s findings as to family support and prospects of rehabilitation, in addition to the reference to those who “speak well” of Mr Jakaj, clearly indicate that the Judge had regard to the submissions and character references.
The Judge did not go on to discuss in detail the background of any of the defendants. There was no requirement for her Honour to set out in the sentencing remarks all of the personal circumstances of each prisoner. What the Judge has set out are her Honour’s conclusions having heard the submissions. The Judge found that each defendant, bar one, had considerable family support and a real chance of rehabilitation.
The Judge made clear findings as to the question of contrition and/or remorse. As discussed those findings were open to the Judge. The failure to mention specifically the proposed apology does not indicate error in the approach of the Judge.
We reject this ground of appeal.
Ground 8
Mr Jakaj contended that special reasons existed to reduce the non-parole component of his sentence to less than the otherwise mandatory four fifths of his head sentence. He submitted that “special reasons” under s 32A(3) of the Criminal Law (Sentencing) Act 1988 arose on two bases. First, it was submitted that under s 32A(3)(a) the Judge should have found that, because the deceased introduced the knife to the fight, his conduct in so doing substantially mitigated the offenders’ conduct. Mr Jakaj relied, for this finding, on the submissions by Mr Zefi on the same point. For the reasons articulated above we have rejected those submissions.
The second limb of the appeal ground is that Mr Jakaj’s offer to plead guilty to manslaughter fell within the terms of s 32A(3)(c) such that the discretion was enlivened. He relied upon his earlier submissions relating to the “offer” to plead guilty to manslaughter.
Section 32A(3)(c) states:
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)     …
(b)     …
(c)     the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.
As discussed earlier the “offer” was not reduced to writing nor was any factual basis put forward for the prosecution to consider. Also at trial Mr Jakaj, as he was entitled to do, put the prosecution to proof and submitted that he was entitled to be acquitted not only of murder but also manslaughter.
The subsection requires the court to make an evaluation of the “degree of cooperation” and the “likely consequences of any such cooperation”. Given the lack of detail surrounding the “offer”, the degree of cooperation here was very slight. It was insufficient to engage the terms of s 32A(3)(c). Even if the sub‑section had been engaged, the matters relied on by Mr Jakaj do not establish special reasons.
We reject this ground of appeal.
Ground 10
During the course of the appeal, and with the consent of the respondent, a further ground of appeal was added as follows:
There has now been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the appellant) by reason of the fact that the Appellant has served a further period on Home Detention bail between 29th September 2015 and 5 September 2016.
The procedural history of this matter is unusual. Mr Jakaj, after the sentence was imposed, was released on home detention bail pending the result of the appeal to the High Court. When that decision was handed down, his bail was revoked. He spent just over 11 months on home detention bail.
The respondent, as mentioned, did not oppose the amendment. The respondent accepted that Mr Jakaj had spent that amount of time on home detention bail. No submissions were made in opposition to this ground of appeal.
A court is not obliged to make a reduction of a sentence on account of time spent on home detention bail. However it is a matter that can be taken into account on sentence; there is no mathematical formula that mandates a specific deduction and much depends on the circumstances of the case.[15]
[15] R v Taylor [2016] SASCFC 54; R v Franceschini (2015) 123 SASR 396.
In our view given the unusual circumstances of this case it is a matter where the court should intervene and resentence Mr Jakaj giving credit for the subsequent time on home detention bail. We allow five months for time spent on home detention bail.
Conclusion
We set aside the sentence of the Judge.
On a resentence it is appropriate to adopt the same starting sentence and also the methodology of the Judge. In sentencing the Judge started with a sentence of six years imprisonment. The non-parole period was four-fifths of that sentence. From that point the Judge deducted from both the head sentence and non-parole nine months to reflect time in custody up to the time sentence was imposed.
We start with a sentence of six years imprisonment. The non-parole period is to be four-fifths of that sentence. We deduct from both the head sentence and the non-parole period a total of nine months as did the sentencing Judge to reflect time in custody up to 7 October 2014.
After he was sentenced on 7 October 2014 Mr Jakaj spent 357 days in custody serving the sentence imposed. On 29 September 2015 he was granted home detention bail pending the High Court appeal. He returned to custody on 5 September 2016 following the judgment of the High Court. We intend his sentence to run from 5 September 2016. Mr Jakaj is therefore entitled to credit for the 357 days he has already served of his original sentence in addition to the credit for time spent on home detention bail pending the High Court appeal. To take into account those periods we allow 16 months credit.
Allowing for the time he has already served and time on home detention bail leaves a final sentence of three years and ten months with a non-parole period of two years and eight months. Both the head sentence and non-parole period are to run from 5 September 2016.
Orders
1.Mr Zefi’s appeal against sentence is dismissed.
2.Mr Jakaj's appeal against sentence is allowed and we resentence him to three years and 11 months with a non-parole period of two years and nine months. Both the head sentence and the non-parole period are to run from 5 September 2016.