Sims v The King - [2023] SASCA 21

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SIMS v THE KING
[2023] SASCA 21
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
2 March 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against a sentence of four years for the offence of aggravated cause harm with intent, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty is 13 years’ imprisonment.
On 24 January 2023, the appellant was sentenced for striking the victim with a shovel, which made contact with the victim’s right forearm and right side of his head, causing a welt across the forearm, a swollen thumb and a headache.
The sentence of four years’ imprisonment was reduced by five per cent on account of the appellant’s late plea of guilty to three years, nine months and 19 days. A non-parole period of two years was fixed. The sentencing judge declined to suspend the sentence or order that it be served on home detention.
The appellant appealed on the basis that the sentencing judge breached the principle outlined by the High Court in The Queen v De Simoni (1981) 147 CLR 383, failed to follow the two-stage process for determining whether to make a home detention order and, in any event, imposed a sentence which was manifestly excessive.
Livesey P and Bleby JA held (allowing the appeal and re-sentencing the appellant):
1.The sentence imposed by the sentencing judge was manifestly excessive, with the result that the sentence must be set aside and the appellant re-sentenced. It was not necessary to address the asserted specific errors.
2.In this case three years was an appropriate starting point for the head sentence. After a reduction for the guilty plea the sentence becomes two years, ten months and six days. Having regard to the appellant’s favourable personal circumstances, a non-parole period of 20 months was appropriate.
3.After allowance for the time spent in custody of one month and six days the sentence will become two years and nine months, and the non-parole period will become one year, six months, three weeks and three days. The sentence will commence from today, 2 March 2023.
4.The appellant’s favourable personal circumstances, active rehabilitation in the three years since his offending and the likely hardships associated with incarceration warrant the finding that there is good reason to suspend the sentence.
Held, per David JA (allowing the appeal and re-sentencing the appellant):
1.The sentence imposed was manifestly excessive and the sentence must be set aside and the appellant re-sentenced.
2.The appellant is sentenced to imprisonment for two years and nine months with a non-parole period fixed at one year, six months, three weeks and three days. The sentence and the non-parole period are to commence from 2 March 2023.
3.Given the serious nature of the offending and the appellant’s prior convictions for assault, there is not good reason to suspend the sentence nor is it appropriate to order that the sentence be served on home detention.

Criminal Law Consolidation Act 1935 (SA) s 24; Sentencing Act 2017 (SA) s 71, referred to.
Adams (a pseudonym) v The Queen [2022] SASCA 47; Bubner v The Queen [2022] SASCA 27; Hackett v The Queen [2021] SASCA 32; Harrison v The Queen [2022] SASCA 35; Hili v The Queen (2010) 242 CLR 520; Liddicoat v The Queen [2021] SASCA 18; Mohamedali v The Queen [2022] SASCA 45; R v Dell (2016) 126 SASR 571; R v Hunter [2015] SASCFC 84; R v Pham (2015) 256 CLR 550; R v Yaroslavceff [2022] SASCA 123; Rendic v The Queen [2021] SASCA 23; The Queen v De Simoni (1981) 147 CLR 383, considered.

SIMS v THE KING
[2023] SASCA 21
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
LIVESEY P and BLEBY JA:
Introduction

This is an application for permission to appeal against sentence imposed following the appellant’s plea of guilty on 21 November 2022 to one count of aggravated causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty is 13 years’ imprisonment.
In essence, the appellant was sentenced for striking the victim with a shovel, which hit the victim’s right forearm and right side of his head, causing a welt across the forearm, a swollen thumb and a headache. For this the sentencing judge commenced with a sentence of four years’ imprisonment. This was reduced by five per cent on account of the appellant’s late plea to three years, nine months and 19 days. A non‑parole period of two years was fixed. The sentencing judge declined to suspend the sentence or order that it be served on home detention.
In outline, the appellant contends that the sentencing judge breached the principle outlined by the High Court in De Simoni,[1] failed to follow the two-stage process for determining whether to make a home detention order and, in any event, imposed a sentence which was manifestly excessive.
[1] The Queen v De Simoni (1981) 147 CLR 383 (De Simoni).
Permission to appeal was granted in relation to the question whether the sentence was manifestly excessive.[2]
[2] Permission was granted by David JA on 13 February 2023 during the course of an unsuccessful bail application.
For the reasons that follow, the sentence is manifestly excessive, with the result that the sentence must be set aside and the appellant re‑sentenced. It is not necessary to address the asserted specific errors.
The circumstances of the offending
During the evening of 21 March 2020, the appellant travelled with two brothers, the Kilpatrick brothers, to the home of two other brothers, the How brothers, in Whyalla. The appellant may or may not have known that one of the How brothers owed a drug debt to one of the Kilpatrick brothers. The purpose of the visit was to take a motorbike from one of the How brothers in lieu of payment.
The appellant’s offending was aggravated by two matters, the first was that the offending was committed in company, and the second matter of aggravation was that the appellant used an offensive weapon. Soon after arrival, the appellant was with the Kilpatrick brothers in the back yard of the home of the How brothers. The Kilpatrick brothers were assaulting Phillip How, the brother who allegedly owed the drug debt. Later the Kilpatrick brothers took the victim’s motorbike. The assault by the Kilpatrick brothers was very serious. As the sentencing judge explained:
To illustrate the seriousness of the attack by the Kilpatrick brothers on Phillip How, one only has to look at the injuries he suffered. He was airlifted from Whyalla to the Royal Adelaide Hospital. He suffered a lower broken jaw in two places and a fractured left eye socket. You are not to be punished for the assault on Phillip How, but you were present when it occurred. … You are not to be punished for the theft of Brenton How’s motor bike. The charge of theft is not proceeded with against you. Nevertheless, the context of the offending shows that the visit to the How’s property was premeditated… I accept that you are unlikely to have foreseen the extent of the attack on Phillip How…
Whilst Phillip How was being assaulted, his brother Brenton How came into the backyard and asked what was going on. This then led to the appellant’s offending, which was described by the sentencing judge as follows:
You then raised the shovel and swung it towards Brenton How. He raised his right arm to defend himself and was then struck on the right side of his head and right forearm by you, with the shovel. As a result, he suffered a welt across his right forearm, a swollen thumb and a headache.
Brenton How provided no victim impact statement and there is no other evidence about the extent of any injury sustained.
The circumstances of the offender
At the time of sentence, the appellant was 33 years of age and married with a very young daughter. His wife was pregnant with their second child.
The appellant had been in good employment for a number of years. In the 12 months or so before sentence the appellant and his family had relocated from Whyalla to Port Lincoln. The appellant took up employment as a general manager for a mental health company, assisting businesses, public agencies and communities to build a culture of care, developing strategies for happier and healthier working. Shortly before sentence the appellant had been promoted to become a director in that company. In addition, the appellant had obtained a second job as the construction manager for an engineering firm and, shortly before sentence, he had again been promoted to general manager, responsible for leading the establishment of the industrial maintenance business unit. His employer provided a very positive reference, emphasising the appellant’s good work ethic and the ongoing support his employer was prepared to provide.
Apart from a number of other favourable character references, the sentencing judge was provided with the appellant’s apology to the victim as well as a letter written to the sentencing judge. In that letter the appellant explained his remorse, as well as the impact fatherhood had on his outlook and attitude. The appellant explained to the sentencing judge that he had decided to move away from Whyalla in order to leave behind the negative influences associated with his past offending. The appellant explained to the sentencing judge his history of employment and the importance his increasing responsibilities had had upon him.
The sentencing judge was advised that the appellant had undertaken counselling for anger management and the submission was made that there was, in light of the appellant’s rehabilitation, a low risk of re‑offending.
The appellant had relevant criminal antecedents.
In February 2010 the appellant was convicted of one offence of assault causing harm committed on 1 August 2009 and one count of assault committed on 2 August 2009. The appellant was convicted on his pleas of guilty. The offending involved punches to the face of the victims whilst the appellant was at a soccer club, affected by alcohol. The sentencing magistrate imposed a term of imprisonment of eight weeks, suspended upon entry into a bond. The bond was complied with.
Over a decade later, on 13 January 2021 the appellant again pleaded to a charge of assault which occurred on 23 February 2020, around one month before the subject offending. The appellant was in a hotel and heavily affected by alcohol when he punched the victim to the face. The sentencing magistrate imposed a conviction but released the appellant on a simple bond to be of good behaviour for 18 months.
The sentencing judge explained that the appellant entered his plea relatively late before the trial, which was to be held on circuit in Port Augusta at the end of November 2022. The trial continued with the two co‑accused, the Kilpatrick brothers, but the jury had to be discharged.
Whilst the sentencing judge set out the factual basis for the appellant’s guilty plea, he also included a very extensive summary of the allegations involving the Kilpatrick brothers and the harm caused to their alleged victim, Phillip How. As has been seen, the sentencing judge emphasised the seriousness of the attack by the Kilpatrick brothers on Phillip How. As the sentencing judge explained:
You are not to be punished for the assault on Phillip How, but you were present when it occurred. You attacked Brenton How in the course of what the Kilpatricks were doing and you stood by Brenton How while the Kilpatricks finished their attack on his brother.
The sentencing judge did not regard the subject offending as being out of character, notwithstanding various statements to that effect made by those that had provided character references, and notwithstanding that the previous offending had involved alcohol. That was not a feature of the subject offending.
The sentencing judge concluded in the following terms:
This was a serious assault committed by you on the brother of someone who was being more seriously attacked by two others. The visit to the house by you and the others was premeditated, although I accept that at least the degree of the attack on Phillip How was not foreseen and your attack on Brenton How was not foreseen at all.
As mentioned, the sentencing judge commenced with a term of four years’ imprisonment before making a reduction for the plea of guilty.
On the questions of suspension and home detention, the sentencing judge explained why he was not prepared to show leniency:
In my view the seriousness of this offending is too great for me to be able to suspend the sentence, notwithstanding the forcefulness of the mitigating factors which your counsel has put on your behalf. Likewise, I think it inappropriate to show you the leniency of the alternative sentencing option of ordering you to serve the sentence on home detention. I have shown what leniency I can by imposing a shorter non‑parole period than would otherwise have been appropriate.
The sentencing judge ordered that the sentence take effect from 24 January 2023 and he imposed an intervention order preventing contact with the victim.
The grounds of appeal – the parties’ contentions
Although there are a number of appeal grounds, in essence the appellant puts forward three matters in support of the appeal:
1.First, the appellant says the sentence of four years’ imprisonment is manifestly excessive. In addition, it is contended that the sentencing judge erred in not ordering that the sentence be suspended or, alternatively, that it be served on home detention.
2.Secondly, it is contended that the sentencing judge failed to properly consider the issue of home detention because he did not undertake the two‑stage test required by s 71(1) of the Sentencing Act 2017 (SA).[3]
3.Thirdly, it is contended that the sentencing judge infringed the De Simoni principle by having regard to aggravating circumstances for which the appellant had not been charged or convicted and on which he was not to be sentenced.[4] The appellant emphasises that he had been charged with additional offences which were not proceeded with but that, notwithstanding, the sentencing judge treated these as aggravating features.
[3] Relying on R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; and Liddicoat v The Queen [2021] SASCA 18.
[4] The Queen v De Simoni (1981) 147 CLR 383.
For the appellant it is contended that he was not sentenced for an offence which involved a single strike with a shovel which resulted in very minor harm for which no medical treatment was required and no ongoing injuries were reported.
Whilst the appellant’s criminal history was acknowledged, it was contended that two of the previous offences had occurred when the appellant was 19 years old and there had been no further offending for 11 years, apart from the assault just before the subject offending, for which a bond was imposed. It was submitted that account needed to be taken of the acknowledged young age and the significant period of good behaviour between the two sets of offending. In addition, the appellant placed emphasis on the period of nearly three years between the subject offending in March 2020 and sentence in January 2023, during which the appellant got married, had a child, moved away from Whyalla and obtained and was promoted in responsible and stable employment. The appellant submitted that undertaking anger management counselling and taking many other steps toward rehabilitation, together with his proved remorse, demonstrated that the starting point of four years’ imprisonment was outside the available range of sentences.
On the question of manifest excess, the respondent pointed to a number of recent sentences for the offence of causing harm with intent, albeit that only one of them involved a pleaded circumstance of aggravation. Those sentences were: Harrison v The Queen,[5] Mohamedali v The Queen,[6] and R v Yaroslavceff.[7] The respondent acknowledged that these decisions illustrate the wide spectrum of appropriate sentences. The offending in Harrison involved a “king hit” behind play on the football field and serious injuries, resulting in a sentence of two years’ imprisonment with a non‑parole period of 11 months and one week. In Mohamedali the offending involving a stabbing with scissors just off Hindley Street which resulted in potentially fatal injuries and a sentence of five years’ imprisonment with a non‑parole period of two years and 10 months. In Yaroslavceff the Director was, by a majority, refused permission to appeal, albeit that this Court agreed that the head sentence of five months for causing harm with intent was manifestly too low and should have been around 24 months.
[5]     Harrison v The Queen [2022] SASCA 35 (Harrison).
[6]     Mohamedali v The Queen [2022] SASCA 45 (Mohamedali).
[7]     R v Yaroslavceff [2022] SASCA 123 (Yaroslavceff).
The respondent accepted that a mere comparison of sentences will not determine the appeal, but contended that there was a need in this case for a strongly deterrent sentence given that the appellant’s deliberately violent conduct involved a weapon. Moreover, the respondent submitted that personal deterrence was relevant because, notwithstanding his prior convictions, the appellant was willing to place himself into a position where he was prepared to use a weapon against his victim notwithstanding that he had previously received leniency.
Whilst the respondent also acknowledged that there was genuine hardship to the appellant’s dependents, it was submitted that this was that which “inevitably results from a bread winner being sent to prison”.[8]
[8] R v Hunter [2015] SASCFC 84, [34] (Nicholson J, with whom Gray and Peek JJ agreed); see also Adams (a pseudonym) v The Queen [2022] SASCA 47, [27]-[62] (Livesey P) and [95]-[101] (Doyle JA).
On the question of suspension, the appellant contended that there was good reason to suspend given the appellant’s personal circumstances and the detrimental effect of his loss of employment upon his family. The appellant also contended that his demonstrated remorse and rehabilitation were relevant. As for home detention, the appellant contended that the sentencing court was required to conduct a two-stage test which involves, first, an enquiry under s 71(1)(c) of the Sentencing Act 2017 (SA) as to the suitability of the defendant for a home detention order, focussing upon the defendant’s personal circumstances,[9] and second, if the court is satisfied that the defendant is suitable then the court must then consider and exercise the broader sentencing discretion as to whether a home detention order is appropriate. The appellant contended that the sentencing judge gave no consideration at all to the appellant’s suitability and, instead, only approached the question of home detention by reference to notions of “leniency”.
[9] R v Dell (2016) 126 SASR 571, [45]-[48] (Doyle J, with whom Kelly and Parker JJ agreed), see also Liddicoat v The Queen [2021] SASCA 18, [34]-[35] (Bleby JA, with whom Kelly P and Lovell JA agreed).
The respondent contended that no specific error was revealed in connection with the decisions made regarding suspension or home detention. In effect, the respondent contended that the sentencing remarks must be read as a whole. It was submitted that these revealed that proper consideration had been given to both suspension and home detention. In particular, it was submitted that the judge proceeded on the basis that the appellant satisfied the first stage of the process required to be undertaken when considering home detention.

Finally, the appellant contended that the sentencing judge’s concentration upon the circumstances of the assault to and the injuries sustained by Phillip How, in which the appellant had no involvement, demonstrated that there had been a failure to apply the De Simoni principle, as well as a failure to comply with s 10(1)(d) of the Sentencing Act 2017 (SA), because the defendant was sentenced on the basis of having committed an offence for which he was not charged or convicted. The appellant relied on, in particular, the passages already extracted from the remarks of the sentencing judge which dwelt on the circumstances of the offending involving Phillip How, including the theft of the motorbike.
The respondent submitted that the statements of principle made by the High Court regarding De Simoni do not require that the circumstances in which an offence takes place are not to be taken into account.[10] The contention that the sentencing judge infringed the De Simoni principle ignored, it was submitted, those remarks are to the effect that the appellant was not being punished for other offences.
[10] The Queen v De Simoni (1981) 147 CLR 383, 394 (Gibbs CJ); R vOlbrich (1999) 199 CLR 270, 278-279 (Gleeson CJ, Gaudron, Hayne and Callinan JJ), but see Hassan v The Queen [2022] SASCA 56, [65]-[66] (Doyle JA, with whom Kourakis CJ and Livesey P agreed); see also Lees v The Queen [2022] SASCA 93, [52].
Determination of the appeal
In Hackett v The Queen this Court addressed the approach required when determining whether there is an error of the kind recognised by House v The King:[11]
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case.[12] The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence.[13] Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed.[14] A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice.[15] It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. 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.[16] To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.[17]
[11] Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA).
[12] Elias v The Queen (2013) 248 CLR 483.
[13] Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[14] House v The King (1936) 55 CLR 499.
[15] Barbaro v The Queen (2014) 253 CLR 58, [61] (Gageler J).
[16] Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[17] R v Pham (2015) 256 CLR 550, [56] (Bell and Gageler JJ).
As is well recognised, it is not enough that this Court may have imposed a different sentence or weighted the relevant sentencing considerations differently; the appellant must demonstrate that the sentence was not reasonably open and was unjust having regard to the circumstances of the offending and the offender.
Hackett was a case of recklessly causing harm for which the sentencing judge imposed a term of imprisonment of two years and two months with a non‑parole period of 14 months. The appellant forcefully pushed the obviously intoxicated victim in the chest, causing him to fall heavily. The victim’s skull fractured when his head struck the pavement, resulting in brain injury. Whilst the offence was less serious than the offence to which the appellant pleaded guilty, consideration necessarily had to be given to the more serious outcome. The same may be said about the offending in Harrison, which resulted in serious facial fractures and injuries. Similarly, the offending in Yaroslavceff involved numerous violent punches to the head causing very serious facial fractures and injuries. Likewise, in the case of Rendic v The Queen the offending resulted in injuries which included a lesion to the face and a fractured skull.[18]
[18] In Rendic v The Queen [2021] SASCA 23 the charge was 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 sentencing judge imposed a head sentence of five years’ imprisonment reduced to four years on account of an early guilty plea with a non-parole period of two years and three months. The sentence appeal was dismissed.
The respondent emphasised the outcome in Mohamedali, based on a starting point of five years’ imprisonment. However, it must be acknowledged that the use of scissors in that case carried with it very obvious, serious risks and the stabbing caused the victim much more serious injuries than occurred in this case.
That is not to say that the use of a spade by the appellant can be excused. Whilst it is relevant to consider the risk associated with the appellant’s offending, so too is the outcome, particularly where the injuries are relatively slight. Though the offending was serious and required the imposition of a term of imprisonment, the objective features of the offending must be taken into account, including the harm actually caused.
It may be accepted that the context in which the offending occurred raised an element of pre‑meditation associated with the taking of a motorbike. However, the sentencing judge clearly found that the appellant’s offending did not form part of any agreement associated with attending at the home of the How brothers. The offending by the appellant was both unexpected and spontaneous.
It may be doubted whether it was necessary for the sentencing judge to address the injuries caused by the Kilpatrick brothers in so much detail. Although the context is relevant, the sentence must be adjudged on the basis that it involved one blow using a shovel which, though it occurred in circumstances of aggravation and was intended to cause harm was, fortunately, not associated with serious injury.
Each case must be considered according to its own facts and circumstances. The outcome in one case will not determine the result in another.[19] Nonetheless, the cases reviewed tend to demonstrate that the starting point of four years’ imprisonment was in this case manifestly excessive.
[19] Hili v The Queen (2010) 242 CLR 520, [46]-[57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Bubner v The Queen [2022] SASCA 27.
In these circumstances the sentence must be set aside and the appellant re‑sentenced. It is, accordingly, not necessary to consider the other grounds of appeal.
Re‑sentencing the appellant
The circumstances of the offending and of the offender need not be repeated. Since sentence was passed, the appellant’s wife has filed an affidavit. In that affidavit she explains that her daughter is not yet two years and she is 11 weeks’ pregnant. She last worked in 2021 and will find it difficult to secure work in Port Lincoln. Childcare is not readily available in Port Lincoln. One of the difficulties is that the appellant’s wife has no family in Port Lincoln and the appellant’s parents are both in full-time employment. They cannot assist with child-care or with the appellant’s financial needs.
In addition, the appellant’s wife has explained that they have purchased a house and have monthly mortgage repayments exceeding $1,400. Whilst the appellant and his wife have been able to access some of the appellant’s employment entitlements, these have covered living expenses and legal fees. Unless the appellant is able to keep working, the probabilities are that he will lose his employment and it will be necessary to sell the house.
This affidavit evidence is relevant to the question of hardship which was raised before the sentencing judge. The question of hardship to the appellant and his dependents is a relevant sentencing consideration.[20]
[20] Adams (a pseudonym) v The Queen [2022] SASCA 47.
In the circumstances of this case, particular emphasis must be given to general deterrence. The cases to which reference has been made demonstrate that the community does not tolerate violent offending, particularly where it involves the use of a weapon. Though each case must turn on the circumstances of the offence and the offender, where violent offending involving the use of a weapon is intended to cause harm and has occurred in company, a defendant with relevant prior convictions may expect that the ordinary starting point will be a sentence of imprisonment.
Given the appellant’s prior convictions, personal deterrence is also relevant. It must nonetheless be recognised that two of the prior offences occurred more than a decade before the subject offending. The appellant’s prior offending needed to be weighed against the significant, positive steps he has taken toward his rehabilitation in the three years since his offending.
The primary purpose for sentencing is to protect the safety of the community. That will not always be achieved by punishment and denunciation alone. The successful rehabilitation of the offender is an important means by which the safety of the community can be protected.[21] Whilst deterrence is relevant to offending of this kind, whether general or personal, these should not be at the expense of the appellant’s rehabilitation and proved capacity to make a positive contribution to the community. The hardships likely caused to the appellant and his family by imprisonment are also relevant.
[21] See the Sentencing Act 2017 (SA), ss 3, 4, 9 and 10.
Having regard to the circumstances of the offending and the offender in this matter, a sentence of no more than three years is appropriate. The appellant qualifies for a reduction of up to five per cent on account of his plea. Given his remorse, it is appropriate to make that reduction and reduce the sentence to two years, ten months and six days. Having regard to the appellant’s favourable personal circumstances, a non-parole period of 20 months should be fixed.
The appellant has been in custody since 24 January this year, a period of one month and six days. After allowance for the time spent in custody the sentence will become two years and nine months, and the non-parole period will become one year, six months three weeks and three days. The sentence will commence from today, 2 March 2023.
The appellant’s life has changed markedly since his offending. He now has a number of powerful reasons to continue to avoid the influences and temptations associated with his previous offending. The appellant’s rehabilitation should be encouraged. Whilst the offending is serious and the appellant is not a first offender, his favourable personal circumstances, active and successful rehabilitation, together with the hardships associated with incarceration, warrant a finding that there is good reason to suspend the sentence.
The sentence will be suspended on condition that the appellant enters into a bond to be of good behaviour for two years.
The appellant will appreciate that should he again offend he will likely serve his sentence in prison. The appellant and his family will then be exposed to the many hardships, disadvantages and pressures usually associated with incarceration.
Conclusion
The sentence imposed on 24 January should be set aside and the appellant resentenced in the manner indicated.
The orders of the Court are as follows:
1.   The appeal is allowed.
2.   The sentence imposed in the District Court is set aside.
3.   The appellant is re‑sentenced to imprisonment for two years and nine months and a non‑parole period of one year, six months, three weeks and three days will be fixed. The sentence will commence from today, 2 March 2023.
4.   The sentence will be suspended on condition that the appellant enters into a bond to be of good behaviour for two years.
DAVID JA:
I have had the benefit of reading the judgment of Livesey P and Bleby JA.
For the reasons given by Livesey P and Bleby JA, I agree that the sentence was manifestly excessive, in terms of the length of the head sentence. The appellant is to be re-sentenced and it is not necessary to address the alleged process errors complained of by the appellant.
On re-sentence, while I agree that it is appropriate that the appellant be sentenced to imprisonment for two years and nine months with a non‑parole period fixed at one year, six months, three weeks and three days for the reasons given by Livesey P and Bleby JA, I would find there is not good reason to suspend the sentence, nor is it appropriate to order the sentence be served on home detention. My reasons follow.
The appellant pleaded guilty to one count of aggravated causing harm with intent to cause harm, contrary to section 24(1) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty is imprisonment for 13 years. The circumstances of aggravation were that the appellant used an offensive weapon, namely a shovel, and was in company with another.
As to the circumstances of the offending, in the early hours of the evening on 21 March 2020, the appellant attended with Tallen Kilpatrick and Dillon Kilpatrick at the home of Phillip How and his brother Brenton How. They did so to take a motorcycle in lieu of a drug debt allegedly owed by Phillip How to the Kilpatrick brothers. Tallen Kilpatrick spoke with Brenton How at the door of the premises and said that he wished to speak with Phillip How. The Kilpatrick brothers followed Phillip How into the backyard where he had fled and there committed a serious assault upon him. During that assault, Brenton How came out of the house and asked what was going on. In response, the appellant swung a shovel at Brenton How, who raised his right arm to defend himself and was struck to the right side of the head and right forearm at the same time. He suffered a welt across his right forearm, a swollen thumb and headache.
After attacking Brenton How with a shovel, the appellant remained with him in the backyard as the Kilpatrick brothers continued their assault on Phillip How. Once finished, the appellant and the Kilpatrick brothers left the premises with a motorcycle belonging to Brenton How.
The appellant pleaded guilty to the offence on the basis that: he was aware that the purpose of the visit was to take the motorcycle; he did not realise that there would be an assault on Phillip How, nor play any part in that assault; and he did not retain possession or benefit from the theft of the motorcycle. The appellant, however, provided no explanation for his assault on the victim. He accepts it was unprovoked.
As to the appellant’s personal circumstances, he is now 33 years old. He is married with a daughter aged two years old (born after the commission of this offence) and has a second child on the way. He is the sole breadwinner. Until recently, he resided with his family in a home which is the subject of a mortgage. The appellant is employed as a general manager of a mining company and has an excellent work history. There were numerous positive character references tendered which attest to his positive attributes and his unlawful conduct being out of character.
The appellant has relevant prior convictions. In 2010, he was convicted of assault and fined $300; and assault causing harm for which he was sentenced to eight weeks imprisonment suspended upon him entering a bond to be of good behaviour for nine months. Both offences were committed over the course of two days in 2009 when he was aged 19 years old. The appellant also committed a further assault one month prior to this offending, for which he was convicted and placed on a good behaviour bond.
It is to be noted that there was about three years between the commission of the offence and sentence. That is in part due to the conduct of a co-accused in absconding. There were no negotiations by the Director of Public Prosecutions or the appellant’s counsel to resolve the matter until days before the trial was listed to commence. By the date of sentence, the appellant had undertaken counselling, become a father, and obtained more senior and lucrative employment as a general manager of a mining company.
The appellant’s offending has several serious features. The appellant travelled to the victim’s home, during the evening, with others in relation to a drug debt. He understood that their purpose for doing so was to take a motorcycle in lieu of a debt. While the appellant does not fall to be sentenced for the vicious attack on Phillip How, it cannot be ignored that his unprovoked attack on Brenton How occurred when the victim went outside to inquire as to the welfare of his brother during that attack. Nor can it be ignored that after attacking Brenton How with a shovel, he made him sit and wait for the attack on Phillip How to conclude before leaving with the Kilpatrick brothers and the stolen motorcycle.
The appellant’s attendance at the premises was pre-meditated and his attack on the Brenton How was unprovoked and without explanation. It occurred in the sanctity of the victim’s home. It was also committed in the company of others (and the threat of their combined force) and with a weapon.
It is to be accepted that the injuries sustained by Brenton How were relatively minor in this case. However, the risk involved in striking a man to the head with a shovel cannot be understated. It was indeed fortunate that he did not do greater harm to him. While there was no victim impact statement provided by Brenton How, it can readily be inferred that the whole incident was a frightening one for him.
It is also significant that the appellant does not come before this Court as a first offender. The appellant has had the benefit of a suspended sentence, and yet he has not been deterred from re‑offending. While there is an intervening period of about ten years between that offending and this matter, the appellant committed a further offence of assault one month prior to this offending for which he was subsequently convicted and sentenced.
It is to be accepted that since this offending, the appellant has undertaken counselling, and not re-offended. He is now a father and has acquired more responsible and lucrative employment. There are positive prospects that he will not re-offend. The appellant’s incarceration will also cause both financial and emotional hardship to his family, for the reasons explained in his wife’s affidavit. Those matters certainly excite sympathy. However, that hardship, while a relevant sentencing consideration, is of the type which will inevitably result from a breadwinner being sent to prison. It is not exceptional.
The factual context in which the offending occurred militates against leniency being extended to the appellant. As discussed above, the appellant is also not a first offender. While the appellant has made rehabilitative progress since the offending, and his personal life has improved, principles of both general and personal deterrence, and the protection of the community from serious violent conduct still needs to be reflected in the sentence. For those reasons, notwithstanding the appellant’s favourable personal circumstances, I do not consider there is good reason to suspend the sentence.

As to an order for home detention pursuant to s 71(1) of the Sentencing Act 2017 (SA), whilst I am satisfied the appellant is a suitable candidate for home detention, the serious nature of the offending behaviour committed against the background of the appellant’s prior convictions are such that I do not consider it is appropriate to order that the sentence be served on home detention. To do so would not amount to condign punishment for this serious offending and would, to my mind, undermine the sentencing objectives of general deterrence, personal deterrence and punishment.
For those reasons, I would allow the appeal and re-sentence the appellant to a head sentence of two years and nine months with a non-parole period fixed at one year, six months, three weeks and three days, commencing from 2 March 2023.