Rendic v The Queen - [2021] SASCA 23

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
RENDIC v THE QUEEN
[2021] SASCA 23
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)
29 April 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Appeal against sentence.
The appellant pleaded guilty to one count of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA).
The offence of aggravated causing serious harm with intent to cause serious harm is a prescribed designated offence pursuant to ss 71(5) and 96(9) of the Sentencing Act 2017 (SA) (Sentencing Act). The effect of this designation is that pursuant to s 96(3)(b) of the Sentencing Act, a sentence of imprisonment may not be suspended if the defendant is sentenced as an adult to a period of imprisonment of 2 years or more. Further, pursuant to s 71(2)(b)(i) of the Sentencing Act, a home detention order must not be made if the defendant is sentenced as an adult to a period of imprisonment with a non-parole period of 2 years or more. The sentencing judge invited submissions as to how he should approach sentencing in light of these provisions.
The judge ultimately imposed a head sentence of four years’ imprisonment, reduced by 20 per cent from a notional starting point of five years for the appellant’s guilty plea. He fixed a non-parole period of two years and three months, which precluded him from making a home detention order. In doing so, he proceeded on the basis that it would be appropriate to consider the impact of s 71(2)(b)(i) in the fixing of the non-parole period where a non-parole period of less than two years was within the range of non-parole periods bearing a proper relationship to the head sentence. He also expressly had regard to the need for the non-parole period to be a proper proportion of the head sentence.
The appellant contended that the sentence was manifestly excessive, that the non-parole period was manifestly excessive, and that the judge erred in his approach to the interaction between s 71(2)(b)(i) of the Sentencing Act and his discretion in fixing a non-parole period.
Held, per Bleby JA (Kelly P and Lovell JA agreeing), refusing permission to appeal on Grounds 1 and 2 and dismissing the appeal:
1. The sentencing judge did not violate any principle of sentencing by his approach to imposing the non-parole period.
2. The sentencing judge’s starting point of five years imprisonment was not outside his discretion. The non-parole period, at approximately 56 per cent of the head sentence, was merciful.
Criminal Law Consolidation Act 1935 (SA) s 23(1); Sentencing Act 2017 (SA) ss 3, 4, 10(1)-(2), 11(1)-(2), 54(2), 71(2), 71(5), 96(3), 96(9); Criminal Procedure Act 1921 (SA) s 158(7)(a); Sentencing Act 1991 (Vic) s 5(2), referred to.
BRK v Police [2020] SASC 116; R v Harkin (2011) 109 SASR 334, discussed.
Inge v The Queen (1999) 199 CLR 295; Markarian v The Queen (2005) 228 CLR 357; Veen v The Queen [No 2] (1988) 164 CLR 465; Knight v The Queen [2021] SASCFC 12; Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; Elias v The Queen (2013) 248 CLR 483; Wong v The Queen (2001) 207 CLR 584; R v Shrestha (1991) 173 CLR 48; Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525; R v Sarandoglou (2010) 107 SASR 396; R v Creed (1985) 37 SASR 566; Hili v The Queen (2010) 242 CLR 520; R v Chalmers (2012) 115 SASR 150; House v The King (1936) 55 CLR 499, considered.

RENDIC v THE QUEEN
[2021] SASCA 23

Court of Appeal – Criminal: Kelly P, Lovell & Bleby JJA

KELLY P: I agree with the orders proposed by Bleby JA for the reasons given by Lovell JA.
LOVELL JA: I generally agree with the reasons of Bleby JA and the order he proposes.
I add the following remarks.
Sentencing is not a mechanical or mathematical exercise. It is a task performed in accordance with the relevant statutory provisions and, if appropriate, the common law. In South Australia, the sentencing task is governed by the Sentencing Act 2017 (the Act). The Act retains aspects of the common law.
Traditionally, a court, when sentencing an offender, had regard to the protection of the safety of the community when determining a proportionate sentence. The protection of society was one factor, amongst many, that the court took into account. Sections 3, 4, 9, 10 and 11 of the Act impact on the sentencing task. The combination of sections 3, 4 and 9 directs a sentencing court to treat the protection of the safety of the community as the primary purpose (paramount consideration) of the sentence to be imposed. Other sentencing purposes, namely to punish, to hold to account, to denounce, to deter specifically and generally and to rehabilitate, remain relevant but are referred to as secondary purposes.
The sentencing discretion is broad. The sections mentioned do not direct the court as to how it must reach its final sentence; the Act is silent in that regard. The direction is that the sentence finally arrived at must achieve the protection of the safety of the community as its primary purpose. As has been observed, the troublesome nature of the sentencing discretion arises from the unavoidable difficulty in giving weight to the various factors to which the court must have regard when determining sentence. Factors bearing on the determination of a sentence frequently pull in different directions. The discretionary nature of the task means that the process does not lead to a single correct answer. The extent to which any factor bears upon the case is a matter of a value judgment. Administration of the criminal law involves individualised justice. It is the obligation of the court to balance the incommensurable factors and arrive at a just sentence[1] which, in South Australia, ultimately reflects the primary purpose, namely the protection of the safety of the community.
[1] Veen v The Queen (No 2) (1988) 164 CLR 465; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Elias v The Queen (2013) 248 CLR 483; Markarian v The Queen (2005) 228 CLR 357.
The Director submitted that nominating one purpose as paramount does not necessarily mean that such purpose must always attract more weight than other purposes. He submitted that the purposes, primary and secondary, are not mutually exclusive and the weight given to any particular factor or purpose depends on the circumstances of the matter before the court. The Director submitted that the primary purpose may be achieved by ‘pursuing one or a combination of the secondary purposes, one or more of which may be said to attract equal or greater weight than the primary purpose and yet the primary purpose still be satisfied’. It is enough, he submitted, that the final sentence achieves the primary purpose. I agree with those submissions.
For example, the purpose of the protection of the safety of the community does not inevitably require the imposition of a heavy or lengthier sentence. That purpose can be achieved, if the circumstances permit, by the rehabilitation of an offender. The community may well be better protected and safer if an offender receives appropriate treatment and therefore is less likely to reoffend.[2] Further, as the Director submitted, there are certain offences where the secondary purposes of general and specific deterrence may, by themselves, achieve the primary purpose.
[2] G, R v Police [2012] SASC 195.
The sentencing discretion, although broad, is fettered by the Act and common law principles. Section 3 requires that the factors to be weighed be viewed through the prism of the primary purpose. However, provided the final sentence achieves the primary purpose, the weight to be given to the various factors or purposes is a matter for the sentencing court.
On the question of the non-parole period it is well established that the non‑parole period must reflect the minimum time that an offender must spend in prison to satisfy the purposes of the head sentence. Thus, the non-parole period must, no less than the head sentence, reflect the need for retribution or punishment, deterrence, rehabilitation and incapacitation.[3] The relationship between the two was explained by Kourakis J, as he then was, in R v Sarandoglou.[4] The scheme:[5]
[3] R v Devries [2018] SASCFC 101.
[4] (2010) 107 SASR 396.
[5] (2010) 107 SASR 396 at [33]-[36].
... necessarily entails a proportionate relationship between the non-parole period and the head sentence. There is an indissoluble and correlative relationship between the proportion of the head sentence spent in custody and the proportion spent on parole. I find it conceptually impossible to conceive the period of imprisonment which is the minimum necessary for deterrence and punishment without also determining the scope to allow for parole because a view about one will necessarily affect the position taken on the other. Moreover, the same factual circumstances will be relevant to both the head sentence and the non-parole period.
The process which I have just described is, as I observed in Foley v Police, the reason that non-parole periods are often fixed at what is sometimes called the usual proportion.
In R v Shrestha, Deane, Dawson and Toohey JJ explained that:
Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing Judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine according to the circumstances which then exist, whether the offender should be released on parole.
(Emphasis added)
It follows that, although a non-parole period is fixed as a certain period of time, it must necessarily reflect a proper proportion of the head sentence. To proceed on any other basis, in my respectful view, distorts the overall sentence. ...
(Footnotes omitted)
I agree with Bleby JA that the Sentencing Judge approached his task, when fixing the non-parole period, in an orthodox manner.
Finally, in relation to the question of the interpretation of s 54(2)(a) of the Act, the matter was not fully argued before this Court. I would prefer to hear full argument before deciding the question.[6]
[6] R v Karnage [2019] SASCFC 82; Stokes v The Queen [2020] SASCFC 9; Knight v The Queen [2021] SASCFC 12.
BLEBY JA: This is an appeal against sentence.
Ismar Rendic pleaded guilty to one count of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is 25 years’ imprisonment.
The offending
At around 4:00 am on 24 October 2019, the appellant became involved in an altercation outside a nightclub in Rundle Street, Adelaide. The appellant was struck to the face, fell to the ground and was kicked more than once. When he got up, he was confronted again, fell to the ground a second time and was again kicked before escaping. The individual who would become the appellant’s victim was present, based on CCTV footage, at the end of the altercation. The sentencing judge declined to make a finding that the victim had struck the appellant or otherwise participated in the altercation, but accepted that the appellant believed that he had some responsibility for what had happened.
The appellant left the area of the nightclub with an unidentified male. They drove in a vehicle owned by a Ms Petkoff, whom they subsequently collected from the corner of Rundle Street and Frome Road. Having collected Ms Petkoff, they drove past the nightclub and went as far as Morphett Street. They then did a lap of the block and returned to the front of the nightclub. The appellant contended that the reason for their return was not related to the earlier altercation, but because they were collecting another woman. The sentencing judge considered that he was unable to make any finding in that regard, but found that once the appellant was outside the nightclub for the final time, he saw the victim and decided to seek retribution.
The appellant remained parked on the road for about a minute before he and Ms Petkoff exited the vehicle. Ms Petkoff replaced the appellant in the driver’s seat while he went to the boot of the car. The appellant and the unidentified male with him then attacked the victim, the appellant striking him once to the head with a tyre iron, and the other man striking him without a weapon. They then returned to the car and left with Ms Petkoff.
The victim did not lose consciousness and remained standing, but observed a large amount of blood coming from his head. He was assisted by an unknown man and woman, who helped order an Uber which took him to the Royal Adelaide Hospital. He received 4 or 5 stitches and was discharged. However, he continued to suffer headaches for the next few days. He attended Noarlunga Hospital on 27 October 2019 where it was ascertained that he had a fractured skull. A CT scan revealed internal brain bleeding. He underwent surgery to remove the fractured bone from his skull and to repair the membrane of his brain. The surgeon noticed an infection inside the victim’s brain, which required treatment with antibiotics. After the surgery, the victim was required to wear a protective helmet until the next surgery, which occurred in early 2020.
After a police investigation, the appellant was arrested at his home on 23 November 2019. He declined to answer questions. His committal hearing occurred on 20 May 2020, and he pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm on 15 July 2020, entitling him to a sentence reduction of up to 20 per cent.
The appellant’s personal circumstances
The appellant was 28 years of age at the time of the offending. He had no relevant prior criminal history. He and his parents had migrated to Australia from Bosnia about 22 years prior to sentencing. His parents had separated when he was 18 years old.
The appellant had been in consistent employment since leaving school at 17, and at the time of sentencing he worked in a business owned by a relative. His employer held him in high regard. References from other family members spoke of the regard in which the appellant was held within his family and his local community.
One matter emphasised in sentencing submissions was the support the appellant provided to his mother, who suffered from various medical issues. He helped her with attending medical appointments and with various tasks at home. He also provided her with some financial support. The appellant submitted that nobody would be able to replace the care he provided to his mother, should he be separated from her by imprisonment.
A court-ordered psychology report stated that the appellant was the victim of a serious assault by three men, three years prior to sentencing, and that he had unresolved effects of post-traumatic stress disorder.
The sentencing judge accepted that the appellant was remorseful and that he appreciated the gravity of his offending. He found that while the appellant had consumed alcohol prior to the offending, his intoxication was not particularly significant.
Sentencing
The offence of aggravated causing serious harm with intent to cause serious harm is a prescribed designated offence pursuant to ss 71(5) and 96(9) of the Sentencing Act 2017 (SA) (Sentencing Act). The effect of this designation is that pursuant to s 96(3)(b) of the Sentencing Act, a sentence of imprisonment may not be suspended if the defendant is sentenced as an adult to a period of imprisonment of 2 years or more. Further, pursuant to s 71(2)(b)(i) of the Sentencing Act, a home detention order must not be made if the defendant is sentenced as an adult to a period of imprisonment with a non-parole period of 2 years or more.
The sentencing judge invited submissions as to how he should approach sentencing in light of these provisions. Both parties accepted that any considerations raised by s 96(3)(b) were irrelevant to the discretion, as a head sentence of at least two years’ imprisonment was required on any view.
In relation to the restriction imposed by s 71(2)(b)(i), the judge identified three possible approaches.[7] The first was to fix a head sentence and non-parole period without taking the provision into account. The second approach was to fix the head sentence without taking the provision into account, but in fixing a non‑parole period, to be mindful that a home detention order would only be within the discretion if the non-parole period set was less than two years. The third approach was to fix both the head sentence and non-parole period mindful of the provision.
[7] Sentencing Submissions Transcript, 22 September 2020, 21.20-22.4.
Both parties made oral and written submissions on this question. Initially, in oral submissions, both parties agreed that either the second or third approach was appropriate.[8] However, in written submissions provided after oral sentencing submissions, the prosecution withdrew from this position and encouraged adoption of the first approach. The appellant’s counsel maintained their position.
[8] Sentencing Submissions Transcript, 22 September 2020, 22.38-23.5; 26.13-19.
The sentencing judge explained the approach he ultimately adopted in his sentencing remarks on 10 November 2020:[9]
In my opinion, the proper approach is to fix the head sentence without reference to s.71(2)(b)(i) of the Sentencing Act. However, I proceed on the basis that there may be some cases in which s.71(2)(b)(i) of the Sentencing Act might be considered in the fixing of the non-parole period, along with all other relevant matters relevant to that task.
I will give only brief reasons for my view. First, the Sentencing Act is to be read as a whole. As with the head sentence, the fixing of a non-parole period requires me to bear in mind that the primary purpose of sentencing is the protection of the community.
Further, as with the head sentence, there are also secondary sentencing purposes set out in the Act which I must consider in fixing a non-parole period. Second, there is no single non‑parole period appropriate in any given case.
It seems to me that when a judge considers that a home detention order will deliver on the primary and secondary purposes of sentencing and is consistent with a proper application of all matters, including those matters in both s.69 and the balance of s.71, and when a non‑parole period of less than two years is within the range of non-parole periods which bear a proper relationship to the head sentence, it will be appropriate to bear in mind s.71(2)(b)(i) of the Sentencing Act in selecting a non-parole period from within the appropriate range.
[9] Sentencing Remarks at 5.
The judge subsequently imposed a head sentence of four years’ imprisonment, reduced by 20 per cent from a notional starting point of five years for the appellant’s guilty plea. He fixed a non-parole period of two years and three months. Before doing so, he reiterated:[10]
In fixing your non-parole period, as above, I must bear in mind the need for the non-parole period to be a proper proportion of the head sentence. I also bear in mind that I will not have the discretion to make a home detention order if the non-parole period is two years or more.
I am mindful of your prior good character, your plea of guilty and your remorse. I am also mindful of your work history and the way in which you are regarded by all of those close to you. You are still a young man with good prospects of rehabilitation.
[10] Sentencing Remarks at 5.
The appeal

The Notice of Appeal advances the following grounds:
1.That the sentence was manifestly excessive.
2.That the non-parole period was manifestly excessive.
3.That the learned Sentencing Judge fixed the non-parole period having regard to the fact that the home detention could not be granted for a sentence with a non-parole period greater than two years.
The respondent conceded that Ground 3 raised a question of law and that permission to appeal should be granted. On 29 January 2021, Kelly P granted permission to appeal on Ground 3 and referred the remaining grounds to the Court of Appeal. It is convenient to consider Ground 3 first.
Ground 3
Ground 3, as articulated in the Notice of Appeal, does not exactly reflect the argument pursued by the appellant in his written submissions or at the appeal hearing. The appellant’s essential argument was that the sentencing judge, in the context of his approach to the interaction between s 71(2)(b)(i) of the Sentencing Act and his discretion in fixing a non-parole period, erred in his expression of ‘the need for the non-parole period to be a proper proportion of the head sentence’,[11] particularly in light of Livesey J’s comments in BRK v Police (BRK):[12]
I have adverted to the process of considering less onerous sentencing options before arriving at an appropriate sentencing option. In my opinion that does not mean that the process becomes mechanical or regimented, or something other than an “instinctive synthesis”. Likewise, it does not mean that the “preconditions” to the enlivening of a discretion to make any relevant order are ignored. What it means is that the sentencing judge will first survey and consider the appropriate and available sentencing options. These options will depend on the circumstances of the particular case including the offending, the offender, the matters mandated by the Sentencing Act and the submissions and evidence before the court. The exercise of the discretion will then focus on the specific requirements of any preferred sentencing option. In many cases this approach to the sentencing hierarchy will not require any detailed consideration, save that adequate reasons for the preferred sentencing option must be given, together with why any key submissions were rejected.
(Footnote omitted)
[11] Sentencing Remarks at 5.
[12] BRK v Police [2020] SASC 116 at [81].
The appellant contends that in considering the need for the non-parole period to ‘be a proper proportion of the head sentence’, the judge fettered his discretion by approaching the issue as one of mathematical proportionality, an error in itself.[13] In doing so, he incorrectly fragmented the sentencing process, failing to ‘survey and consider the appropriate and available sentencing options’, including home detention, as suggested by Livesey J in BRK.
[13] Inge v The Queen (1999) 199 CLR 295 at [59].
At common law, the judicial sentencing discretion is broad. There is no fixed path that must be followed, save for taking into account all relevant considerations in forming the conclusion reached, and striving for consistency of approach. This much was made clear by the High Court in Markarian v The Queen:[14]
Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
(Footnotes omitted)
[14] Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
In South Australia, the regime under the SentencingAct imposes significantly on the discretion by providing primary and secondary purposes that must be considered in its exercise. Sections 3 and 4 set out those purposes as follows:
3—Primary sentencing purpose
The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general).
4—Secondary sentencing purposes
(1)     The secondary purposes for sentencing a defendant for an offence are as follows:
(a)      to ensure that the defendant—
(i)      is punished for the offending behaviour; and
(ii) is held accountable to the community for the offending behaviour;
(b)     to publicly denounce the offending behaviour;
(c) to publicly recognise the harm done to the community and to any victim of the offending behaviour;
(d) to deter the defendant and others in the community from committing offences;
(da) to deter the defendant and others in the community from harming or assaulting prescribed emergency workers (within the meaning of section 20AA of the Criminal Law Consolidation Act 1935) acting in the course of official duties;
(e)      to promote the rehabilitation of the defendant.
(2)     Nothing about the order in which the secondary purposes are listed in subsection (1) implies that any 1 of those secondary purposes is to be given greater weight than any other secondary purpose.
These purposes, so expressed, provide the foundation for the exercise of the discretion. They are interrelated and must be considered together as a whole, rather than each in isolation from the others.[15] That general observation is not altered by the classification of purposes into primary and secondary sentencing purposes. In Knight v The Queen,[16] Livesey J, in considering whether s 54(2)(a) of the Sentencing Act alters the apparent hierarchy of purposes in ss 3 and 4, for the purpose of considering whether to depart from the prescribed minimum non-parole period in the case of serious repeat offenders, said:[17]
In most cases, the defendant’s task will be to demonstrate why personal circumstances outweigh the paramount and secondary purposes specified in s 54(2)(a) and otherwise addressed by ss 3, 4 and 9 of the Act. The primary difference is one of emphasis. That is, if neither personal and general deterrence are “paramount”, but secondary, they are not to be accorded the same weight as the need to consider public safety.
[15] Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 (Mason CJ, Brennan, Dawson and Toohey JJ).
[16] Knight v The Queen [2021] SASCFC 12.
[17] Knight v The Queen [2021] SASCFC 12 at [53] (Livesey J, Kelly and Bleby JJ agreeing).
I agreed with his Honour’s reasons in that matter. I did not understand that statement to extend beyond his Honour’s obiter consideration of the proper interpretation of s 54(2)(a). Whether or not, in that context, the potential difference in emphasis resulting from different readings of s 54(2)(a) is likely to have a concrete effect when it comes to a consideration under that section, it is not the case that ss 3 and 4 establish an immutable hierarchy of sentencing purposes that has a universally common application. In some cases (the Director gave the example of certain regulatory offences such as those relating to undersized fish), the objective of protecting the safety of the community will be best seen as an abstraction that does not require independent consideration beyond that which is achieved by giving proper consideration to personal and general deterrence.
In the more immediate context of major indictable offences of violence, the direction by Parliament that protecting the safety of the community is the primary sentencing purpose does not mean that steps that might have an obvious relevance to the “secondary” considerations of personal or general deterrence, or promoting the rehabilitation of the defendant, do not also have a role in protecting the safety of the community. That there is now expressed to be a primary sentencing purpose does not change the fundamental nature of the sentencing undertaking, which accepts the interrelatedness of the purposes and requires them to be considered together.
Section 10(1) of the Sentencing Act builds upon this foundation with instructions to apply the common law principles of proportionality, parity and totality. Section 11(1) requires the court to take into account various listed factors, as may be relevant. Those factors are in addition to any other matter the court is required or permitted to take into account.[18] Applying all of these principles is not straightforward. As the High Court said in Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym), discussing a provision of the Sentencing Act 1991 (Vic) analogous to s 11 of the Sentencing Act:[19]
[18] Sentencing Act 2017 (SA) s 11(2).
[19] Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428 at [4]-[7] (Kiefel CJ, Bell and Keane JJ).
The considerations to which a sentencing judge is obliged by s 5(2) to have regard cannot be applied mechanically. Such an application is not possible given that the factors that must be taken into account are incommensurable, and indeed, in many respects, inconsistent. In Elias v The Queen, French CJ, Hayne, Kiefel, Bell and Keane JJ said:
“As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances.”
The balancing of the factors listed in s 5(2) of the Sentencing Act in order to arrive at a sentence that is just in all the circumstances is a matter of instinctive synthesis, as explained in Wong v The Queen by Gaudron, Gummow and Hayne JJ:
“[T]he task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.”
This statement was referred to, with evident approval, by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen.
While the instinctive synthesis must be informed by each of the factors listed in s 5(2), the extent to which each factor bears upon the case is inevitably a matter for judgment. The process of instinctive synthesis thus allows a measure of discretion to the sentencing judge. The discretionary nature of the judgment required means that there is no single sentence that is just in all the circumstances. Nevertheless, it is well understood that a sentence may be so clearly unjust, because it is either manifestly inadequate or manifestly excessive, that it may be inferred that the sentencing discretion has miscarried. The question raised for determination by the Court of Appeal in the present case was whether the sentence imposed on the respondent was manifestly inadequate.
(Footnotes omitted)
Within this process of instinctive synthesis, the actual punitive options available to the sentencing court are dictated and limited by statute. Maximum penalties, in the form of fines or periods of imprisonment, are generally set out in the same provision in which the relevant offence is created.
Section 10(2) of the Sentencing Act provides that a court must not impose a sentence of imprisonment unless the seriousness of the offence is such that it is the only penalty that can be justified, or it is required for the purpose of protecting the safety of the community. If the court is satisfied of one of these conditions, a sentence of imprisonment may be imposed. The questions of whether that sentence may be suspended, partially suspended, or served on home detention then arise.
Some or all of these options, depending on the circumstances, will comprise the ‘appropriate and available sentencing options’ that, as Livesey J observed in BRK, a sentencing judge will survey and consider.[20]
[20] BRK v Police [2020] SASC 116 at [81].
Justice Livesey in BRK was not describing a process by which a judge, by instinct, may select a sentencing option from those available and then reason toward that outcome. Rather, his Honour was advocating a holistic approach, in line with general principles of rationality and reading the Sentencing Act as a whole, that canvasses all appropriate and available sentencing options.
BRK concerned a sentence imposed by a Magistrate who had failed to identify in her reasons whether she had considered home detention as an available sentencing option, that option being central to the case put by defence counsel. As Livesey J explained in a passage shortly after the paragraph relied upon by the appellant:[21]
Indeed, in circumstances where suspension was being urged, and in part acceded to by the Magistrate, it is arguable that home detention necessarily needed to be explicitly considered before imposing any period of actual incarceration. That is, as home detention was, in the particular circumstances of this case, an available sentencing option, the Magistrate needed to have regard to it when surveying the array of sentencing options at her disposal.
Nothing in s 71 is otherwise directed at restricting the broad discretion reposed in a sentencing judge to consider, and ultimately to implement, the sentencing package which best meets the objectives and requirements of the Sentencing Act and the circumstances of the offender and the offending. The exercise of that discretion requires that the appropriate and available sentencing options be considered before embarking on the particular pathways laid down by s 71 and s 96 of the Sentencing Act.
(Footnotes omitted)
[21] BRK v Police [2020] SASC 116 at [85]-[86].
The Director submitted that in BRK, Livesey J was describing nothing more than that, in the course of the instinctive synthesis exercise, certain sentencing options are quickly eschewed as inappropriate, before evaluating those to which serious consideration must be given as falling within the range. I agree with this characterisation.
The sentencing judge proceeded on the basis, consistently with the approach described in BRK, that there may be cases where s 71(2)(b)(i) is a relevant factor to consider in the imposition of a non-parole period. This is particularly where a judge considers that a home detention order will deliver on the primary and secondary purposes of sentencing and where a non-parole period of less than two years is within the range of non-parole periods which bear a proper relationship to the head sentence.
In this way, the judge conducted the relevant survey to determine whether home detention was indeed ‘appropriate and available’ as a sentencing option. Clearly enough, he considered that it was such an option, as he kept s 71(2)(b)(i) in his mind in fixing the non-parole period. It is necessary to emphasise, however, that home detention being an appropriate and available sentencing option does not preclude other options from being more appropriate in the circumstances.
Where a sentence of imprisonment is imposed, a sentencing judge will set a non-parole period (except where is it inappropriate that a convicted person should ever be considered for release on parole),[22] which reflects the minimum proportion of the head sentence the judge considers justice requires to be served, having regard to all the circumstances of the offence.[23]
[22] R v Shrestha (1991) 173 CLR 48 at 69 (Deane, Dawson and Toohey JJ).
[23] Power v The Queen (1974) 131 CLR 623 at 629 (Barwick CJ, Menzies, Stephen and Mason JJ).
The purpose of the non-parole period is to provide for mitigation of the punishment of a prisoner in favour of their rehabilitation. While this confers a benefit upon the prisoner, it is intended to serve the interests of the community, and so satisfies both primary and secondary purposes of the Sentencing Act.[24] It follows, as Mason CJ and McHugh J observed in Bugmy v The Queen, that all factors relevant to the determination of the head sentence are also relevant to the determination of the non-parole period. However, the weight to be attached to those factors will differ due to the different purposes that inform each of the head sentence and non-parole period.[25]
[24] Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J).
[25] Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J).
In R v Sarandoglou, Kourakis J, as he then was, explored the relationship between the head sentence and non-parole period as follows:[26]
… the length of time during which an offender will benefit from the opportunity to rehabilitate while on parole in the community is as relevant a consideration in determining the length of the non-parole period as the requirements of punishment and deterrence. Moreover, the very proposition that the non-parole period must, “no less than the head sentence”,[27] also reflect the need for punishment, deterrence and prevention necessarily entails a proportionate relationship between the non-parole period and the head sentence. There is an indissoluble and correlative relationship between the proportion of the head sentence spent in custody and the proportion spent on parole. I find it conceptually impossible to conceive the period of imprisonment which is the minimum necessary for deterrence and punishment without also determining the scope to allow for parole because a view about one will necessarily affect the position taken on the other. Moreover, the same factual circumstances will be relevant to both the head sentence and the non-parole period.
…
It follows that, although a non-parole period is fixed as a certain period of time, it must necessarily reflect a proper proportion of the head sentence. To proceed on any other basis, in my respectful view, distorts the overall sentence.
(Footnote in original)
[26] R v Sarandoglou (2010) 107 SASR 396 at [33], [36].
[27] R v Creed (1985) 37 SASR 566 at 568 per King CJ.
In my view, no error can be attributed to the sentencing judge’s expression to the effect that the non-parole period should be a proper proportion of the head sentence. This displayed an entirely orthodox approach. Contrary to the appellant’s contention, there is nothing to suggest that these words reveal a mechanical or mathematical approach to the setting of the non-parole period.
The appellant also submitted that the judge made a process error in considering whether a non-parole period of less than two years is within the range of the non-parole periods which bear a proper relationship to the head sentence. This submission appears to rely on the statement in Hili v The Queen disapproving of identifying a ‘norm’ for non-parole periods.[28] Nothing in the sentencing remarks suggests that the judge identified or deployed a putative ‘range’ or ‘norm’ when setting the non-parole period.
[28] Hili v The Queen (2010) 242 CLR 520 at [36]-[38] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The sentencing judge did not violate any principle of sentencing by his approach to imposing the non-parole period. Rather, he kept in mind the potential of a home detention order, and the constraints imposed by s 71(2)(b)(i) upon his discretion to make such an order. He nevertheless reached an alternative sentence after considering all of the relevant circumstances of the offender and the offending.
This approach was orthodox. I would dismiss Ground 3 of the appeal.
Grounds 1 and 2

As I have observed, the judge identified a starting point of five years, which he discounted by 20 per cent for the plea, fixing a head sentence of four years. In support of the complaint that this was manifestly excessive, the appellant provided a ‘Schedule of Comparative Cases’. I did not find this helpful. For the most part, the cases were not comparable, as they largely concerned different offences with different maximum penalties.
The only case that the appellant relied on involving the same maximum penalty of 25 years was R v Harkin.[29] That case concerned the same offence as in this matter, aggravated causing serious harm with intent to cause serious harm. The defendants were father and son and had confronted the victim in the toilets of a Hungry Jacks restaurant, on the belief that the victim had been involved in an altercation with Mrs Harkin. The defendants were unarmed, but left the victim with severe injuries. They gave a false account to police. The father was sentenced to three years’ imprisonment with a non-parole period of 18 months. The son was sentenced to two years and three months’ imprisonment with a non-parole period of 12 months. The sentences were suspended.
[29] (2011) 109 SASR 334.
This case is not capable of establishing a range, departure from which is indicative of error. In R v Chalmers, the Chief Justice responded to a similar submission to the effect that Harkin constituted some sort of benchmark: [30]
The sentence imposed by the Full Court of this Court in R v Harkin should not be taken to have established a benchmark for head sentences for serious offences of violence. The question in Harkin was whether in suspending the sentences, the sentencing judge’s exercise of discretion had miscarried. The Full Court held that in the case of Mr Harkin Senior, it had and the suspension was set aside. It therefore became necessary to re‑sentence him. The sentencing judge had fixed a head sentence of three years. Gray and Sulan JJ did not explain how they came to fix the same head sentence as the sentencing judge. The maximum penalty for the offence of aggravated cause serious harm for which Mr Harkin was sentenced was 25 years. A head sentence of three years was, in my respectful opinion, a very merciful one. White J expressly adopted the head sentence imposed by the sentencing judge because it was not challenged by the prosecution. I am, with respect, not sure that once an error has been identified, the duty to fix the sentence which should have been imposed by the sentencing judge can be modified by the position taken by the prosecution. Be that as it may, it remains the case that the head sentence imposed by the Full Court in Harkin was fixed after a hearing in which it appears to have been accepted by the Director of Public Prosecutions that a head sentence of three years was appropriate.
(Footnote omitted)
[30] R v Chalmers (2012) 115 SASR 150 at [21] (Kourakis CJ).
More fundamentally, one sentence does not establish a range. In any event, it is well established that, absent some articulation of unifying principle, a mere history of sentences that have been imposed for an offence, while identifying a range that has been imposed, does not necessarily establish that this is the correct range, or that its limits are correct.[31]
[31] Hili v The Queen (2010) 242 CLR 520 at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28 at [303]-[305] (Simpson J), Wong v The Queen (2001) 207 CLR 584 at [59] (Gaudron, Gummow and Hayne JJ).
In summarising why the sentence should not be considered to be manifestly excessive, the Director identified, as apposite, a less-often quoted passage from the House v The King:[32]
In the circumstances we have stated we do not think that we can say that the sentence, although severe, was unreasonable or clearly unjust, and there is no other ground for saying that it arose from error of fact or of law, or failure to take into account any material consideration, or from giving undue weight to any circumstance or matter.
[32] (1936) 55 CLR 499 at 507 (Dixon, Evatt and McTiernan JJ).
Having regard to all of the appellant’s personal circumstances and the nature of the offending, I do not consider the starting point of five years to have been outside the sentencing judge’s discretion. The non-parole period, at approximately 56 per cent of the head sentence, was merciful.
Conclusion
I would refuse permission to appeal on Grounds 1 and 2. I would dismiss the appeal.