Talbot v The Queen (No 2) - [2019] SASCFC 113

Supreme Court of South Australia
(Court of Criminal Appeal)
TALBOT v THE QUEEN (No 2)
[2019] SASCFC 113
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
27 September 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CONTRITION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD
This is an appeal against the fixing of a non-parole period of 24 years following the conviction of the applicant for murder.
On 1 February 2017, the applicant inflicted numerous injuries to the victim, including stomping on his head, which caused the victim’s death. The applicant had been consuming alcohol over the course of the day prior to the murder. After the murder, the applicant placed a fruit cake on the victim’s head, departed the victim’s home and continued to consume alcohol nearby while bragging about having attacked the victim.
The applicant advances two grounds of appeal. First, he contends that the non-parole period is manifestly excessive in that the sentencing Judge failed to have adequate regard to his Aboriginality and his plea of guilty to manslaughter in evaluating his prospects of rehabilitation and his contrition. Secondly, the Judge failed to make a finding as to the objective seriousness of the offending.
Held, per Parker J (Kelly J and David AJ agreeing), granting permission to appeal but dismissing the appeal:
1. The totality principle does not apply where a defendant is being sentenced for a single offence (at [67]).
2. The applicant's age does not support the setting of a shorter non-parole period (at [68]-[71]).
3. The Judge did not err in failing to refer specifically to the applicant’s Aboriginality in his sentencing remarks (at [72]-[78]).
4. The applicant’s plea of guilty to manslaughter was not indicative of remorse (at [79]).
5. The Judge’s conclusion that the applicant’s rehabilitation prospects were poor was supported in context (at [80]).
6. The Judge did not err by failing to specify the objective seriousness of the offence (at [81]-[82]).
7. The non-parole period of 24 years was not excessive and was squarely within the range reasonably available to the Judge (at [83]).
Sentencing Act 2017 (SA) s 48, referred to.
Gulyas v Western Australia (2007) 178 A Crim R 539, applied.
R v Peet [2018] SASCFC 91; Bugmy v The Queen (2013) 249 CLR 571; R v Tjami (2000) 77 SASR 514, distinguished.
Talbot v The Queen [2019] SASCFC 112; R v Pennington [2015] SASCFC 98; R v Fernando (1992) 76 A Crim R 58; R v Hallcroft (2016) 126 SASR 415; R v Stewart (1984) 35 SASR 477; R v Yates [1985] VR 41; R v Osenkowski (1982) 30 SASR 212; R v von Einem (1985) 38 SASR 207; R v Lane (1990) 53 SASR 480; R v Saleh [2017] SASCFC 75; R v Cave [2012] SASCFC 42, considered.

TALBOT v THE QUEEN (No 2)
[2019] SASCFC 113
Court of Criminal Appeal: Kelly and Parker JJ, David AJ

KELLY J: I would dismiss the appeal. I agree with the reasons of Parker J and the orders he proposes.
PARKER J: This is an appeal against the fixing of a non-parole period of 24 years following the conviction of the applicant for murder.
The grounds of appeal
The notice of appeal was lodged out of time. However, the respondent did not object to an extension of time and the appeal was argued on the basis that an extension would be granted.
The grounds of appeal advanced by the applicant are as follows:
1. The sentence is manifestly excessive.
Particulars
1.1.The non-parole period is manifestly excessive;
1.2.The learned sentencing Judge failed to have any or adequate regard to the Applicant’s plea of guilty to manslaughter, the conduct of the trial and the Applicant’s overall personal circumstances in evaluating the Applicant’s prospects of rehabilitation; and
1.3.The learned trial Judge failed to have any or adequate regard to the Applicant's plea of guilty to manslaughter in determining his contrition and remorse.
2.The learned sentencing Judge erred in failing to make a finding as to the objective seriousness of the offending and/or failed to give adequate reasons for any such finding.
The respondent conceded that the application for permission to appeal against sentence was reasonably arguable. A Judge of this Court referred the question of permission to appeal to the Full Court.
Background
Upon the applicant being arraigned, he entered a plea of not guilty to the charge of murder but guilty to manslaughter. The prosecution did not accept that plea and the applicant was convicted of murder following a jury trial. Eldon Crouch was also charged with the murder on the basis of a joint criminal enterprise with the applicant, but was acquitted of both murder and manslaughter by the jury.
The circumstances leading up to the murder of David Saunders by the applicant are set out in the judgment of Stanley J in Talbot v The Queen relating to the applicant’s unsuccessful appeal against conviction.[1] It is necessary for the purposes of this sentencing appeal to refer to some additional factual matters.
[1] [2019] SASCFC 112.
The applicant’s conduct before and after the murder
The applicant spent much of 1 February 2017, the day of the murder, consuming alcohol. His first purchase of alcohol was made at 9:10 am. The applicant’s behaviour over the course of the day varied from being aggressive to being polite and friendly. In the early afternoon, the applicant engaged in an altercation with his adult son, Kasey Talbot, and his son’s friend, Ian Hall-Philp. That incident occurred at the applicant’s home at 46 Heysen Parade, Hayborough. The applicant was hit by his son with a piece of wood and sustained a cut to his nose. The applicant struck Mr Hall-Philp with a piece of wood four times across the lower back. It does not appear that Mr Hall-Philp sustained any significant injury.
The applicant’s son requested that the police attend at 46 Heysen Parade. At about 2:20 pm, apparently with the intention of diffusing conflict, the police took the applicant to 90 Mentone Road, Hayborough. The applicant agreed to that move. The victim and Mr Crouch lived at 90 Mentone Road. The victim was present when the applicant arrived with the police. The police observed that the applicant and the victim were talking and laughing after the applicant left the police car. He took with him between 10 and 15 cans of beer.
Mr Crouch returned to 90 Mentone Road about one hour after the applicant had been dropped there by the police. At about 6:00 pm Roger Perry, a friend of the deceased and Mr Crouch, arrived at the house and approached the back door. The applicant and Mr Perry did not know each other. The applicant was abusive to the deceased, Mr Crouch and Mr Perry. At that time the victim did not appear to have any injuries. The applicant spat at Mr Perry, threatened to kill him and his family and invited him to fight. As a result, Mr Perry left the premises. He subsequently telephoned the victim but the phone was answered by the applicant. During that call the applicant again threatened to kill Mr Perry and his family.
At about 7:30 pm the applicant and Mr Crouch left the Mentone Road house and walked by way of Sinclair Street and Kaurna Avenue towards the applicant’s home at 46 Heysen Parade. Several witnesses who saw the two men at this time testified that the applicant acted in an aggressive, abusive and threatening manner towards them. The applicant also kicked a gate so forcefully that a mounting bolt was sheared off. However, there was also evidence from another witness that he behaved in a friendly manner towards her.
The victim’s injuries
Mr Perry returned to the Mentone Road house with others sometime between 8:35 pm and 8:45 pm. They discovered the body of the victim lying in a pool of blood on the floor inside the house. A fruit cake had been placed on his head.
Dr John Gilbert, a forensic pathologist, gave evidence that the victim’s death was caused by blunt head trauma which had resulted in a brain injury and substantial bleeding. This was due to a skull fracture that ran across the left side of the base of the victim’s skull. The evidence of Dr Gilbert was that the skull fracture had been caused by a single stomp of considerable force although he did not rule out the possibility of more than one stomp. A great deal of force had been required to cause the skull fracture, which Dr Gilbert described as “what one might see in a vehicle accident”. The skull fracture would have produced bleeding from the ear. The victim had suffered at least six blows to the head, including the stomp that led to his death. The remainder of the injuries suffered by the victim were relatively minor and easily survivable.
Dr Gilbert stated that the victim had sustained 49 separate injuries. The victim had been unconscious for some time before his death, which accounted for the substantial bleeding and bruising. Dr Gilbert identified substantial facial bruising. The victim had also suffered three linear abrasions to the front of his skull that had been caused by something sharp being drawn over his skin, possibly the tip of a knife. There were also two shallow stab wounds to the victim’s neck, and also an area of abrasion or grazing to the right side of his neck. Internal bleeding within the victim’s neck was likely to have been caused by blunt injury or compression. Dr Gilbert also referred to a fracture of the hyoid bone and associated bruising. The neck injuries were most likely caused by a side-to-side application of force, possibly from a hand or foot being pressed down. The internal injuries to the victim’s neck were far more than would be sustained in a fatal strangulation. However, if there was any strangling it was only brief and insufficient to cause death. There was no evidence of prolonged strangulation. The injuries to the neck might have been inflicted by a single grabbing motion with one hand, but were not life threatening.
Dr Gilbert also referred to a number of minor injuries to the torso of the victim that could have been sustained in the course of an assault. Particular areas of bruising were consistent with blunt trauma. The hands and arms of the victim displayed superficial bruising that was consistent with defensive injuries. Due to the age and poor health of the victim, the skin on his hands and arms was more susceptible to bruising.
The crime scene
The victim had been alive but unconscious for some time after the infliction of his head injuries. He was found lying face up in the middle of the kitchen floor with his head, arms and clothing covered in blood. Household items, furniture and beer cans were strewn across the floor of the kitchen and living room. The floor and surfaces in those two rooms were covered in blood.
Blood deposits indicated that two knives, a carpet sweeper and a saucepan had been used as weapons during the assault on the victim. Blood splatter evidence indicated that a hard object had been swung towards the victim after blood had been deposited on the item.
Blood staining, clotted blood and tissue-like debris was located on the applicant’s clothing and footwear. The fact that blood located on the applicant’s boots had clotted was consistent with the prosecution case that he had kicked the victim after blood had time to clot on the victim. As Stanley J noted at [136] in Talbot v The Queen,[2] this latter evidence indicates that the victim had spent some time on the floor bleeding before the applicant had kicked him.
[2] [2019] SASCFC 112.
In light of that matter together with the evidence about the multiple injuries suffered by the victim, the force used to administer the fatal stomp, the detail concerning blood and human tissue, the state of the house and the multiple items used in the assault, I agree with the observation made by Stanley J that the characterisation by the applicant of the attack on the deceased as a sudden drunken quarrel did not accurately convey the duration and nature of the attack by the applicant on the victim.
Events after return to Heysen Parade
After the arrival of the applicant and Mr Crouch at the Heysen Parade address, the applicant told his uncle, Richard Kropinyeri, what he had done at the Mentone Road house. While Mr Kropinyeri could not recall the exact words used by the applicant, he stated in evidence that the applicant had referred to a bloke being on the ground and trying to get blood out of his ears by stomping. The applicant had demonstrated by making a stomping motion with his feet. The applicant was also covered in blood on his hands and boots and had shown Mr Kropinyeri the blood on his boots. He had said that the incident was something to do with a girl called Sally. The applicant continued to drink beer. At one point the applicant had flipped the table over and run after his son. The son had then called for police assistance.
Mr Hall-Philp gave evidence that after the arrival of the applicant at the Heysen Parade house, Mr Hall-Philp had heard him talking and laughing saying that he “stomped on some cunt’s head” followed by “that was my girl” and “he deserves it”.
Mr Crouch stated in evidence that there had been an argument between the applicant and the victim. The applicant had kicked and stomped on the deceased and “pulverised” him. He had assaulted the deceased “every two seconds for two hours” and was telling him to shut up for groaning. Mr Crouch claimed that he could not intervene because it would cost him his life.
Intoxication
A blood sample taken from the applicant at 4:32 am on 2 February 2017 indicated a blood alcohol content of 0.115%. Expert pharmacological evidence given by Professor Jason White was that if the applicant had not had any alcohol to drink after 7:30 pm, his blood alcohol content as at 7:30 pm could have been about 0.25%. If the can of beer, consumed quickly by the applicant at about 11:00 pm when he was first spoken to by the police, was factored into the back calculation, his blood alcohol content at 7:30 pm would be reduced to about 0.22%. If, as the evidence of Mr Kropinyeri suggested, he had consumed more beer after 8:30 pm. that would further reduce the back calculation of alcohol below 0.22%. The blood sample also indicated that the applicant had been smoking cannabis. Professor White stated that the cannabis may have added a small degree of additional impairment, but that would be relatively small compared to the effects of the alcohol. The blood and urine samples also revealed traces of prescribed medications.
Personal circumstances
The applicant was aged 50 years when the murder occurred on 1 February 2017. He is an Aboriginal man who was brought up by his mother at Tailem Bend as one of six children. His mother was a teacher and his father had been a bus and truck driver. While his father was an alcoholic, the applicant got along quite well with him and did not wish to live with his mother. However, the applicant did get on well with his mother’s new partner. He was sexually assaulted by a neighbour when he was a child. According to the sentencing submissions, that had occurred when the applicant was aged about five or six years and was the reason why he preferred to live with his father.
The applicant left high school part-way through year 12. He worked in a number of labouring jobs and completed TAFE courses in first aid, community service and business management. The applicant is the father of eight children by three partners. At the time of sentencing, his children ranged in age from five years to 31 years. He had been required to undertake what the sentencing Judge described as “child courses” so as to be granted access to some of his children. He had tried to support his children, although the sentencing Judge noted that his relationship with his son, Kasey, was very poor. He suffers a number of health problems, including failing eyesight, spinal pain, arthritis and high blood pressure.
The applicant has an extensive criminal history extending back to 1986. He has been convicted of 45 previous offences. There were also a number of other matters that were dealt with without recording a conviction. The majority of the applicant’s prior convictions relate to traffic offences, public order offences, low level drug matters and dishonesty. However, there was an offence of common assault dealt with by the District Court in 1994 and another offence of assault occasioning actual bodily harm for which the applicant was sentenced by the District Court in 2003.
The District Court sentencing remarks from 1994 show that the common assault involved the applicant holding a knife and pointing it towards his victim while saying words to the effect of “does this scare you?” The District Court sentenced the applicant to imprisonment for six months with that sentence being suspended upon him entering into a good behaviour bond.
The sentencing remarks from 2003 reveal that the offence of assault occasioning actual bodily harm occurred when the applicant struck his victim a forceful blow across the top of his shoulders with a steel chair. He had committed the assault because he was angry about issues that had arisen between the victim and a woman. The sentencing Judge noted that the applicant had problems with alcohol abuse and previously substance abuse. During the period of over 14 months that he had spent on remand the applicant had undertaken drug and alcohol counselling, parenting counselling and an anger management course. He had also agreed to undertake further such courses. The sentencing Judge indicated that he would have imposed a sentence of two years imprisonment but as there was some ground for optimism that the applicant might change his life, and in recognition of the applicant’s guilty plea, his Honour reduced the sentence to imprisonment for one year and eight months. After taking into account the time spent in custody, the sentence was reduced to imprisonment for six months. That sentence was suspended upon the applicant entering into a good behaviour bond. It was a condition of the bond that the applicant may be directed to undertake drug and alcohol courses and an anger management course.
Victim impact statements
Two victim impact statements were provided to the Court. One statement was provided by the daughter of the victim. She had needed professional help to deal with mental health issues following the murder of her father. She stated that she had suffered a reoccurrence of anxiety and depression. Her relationships with her mother and her partner had also suffered. She suffered from sleepless nights due to her thinking about the gruesome way in which her father had been killed. She also stated that she had been distressed by the fact that the applicant fell asleep at his trial. However, the Court has been informed that this was a side‑effect of the applicant’s medication.
The victim’s former wife also provided a victim impact statement to the Court. She stated that she suffered from a loss of trust and sleeplessness due to the murder. She had also been greatly affected by the suffering of her daughter. It had been necessary for her to take time off work due to her sleeplessness. Her relationships with other people have suffered, as has her work and mental health.
Sentencing remarks

The Judge found that the death of the victim had been caused by a single stomp to his head. His Honour also found that the overwhelming nature of the medical evidence indicated that the applicant had engaged in a sustained vicious attack on the victim. His Honour further noted that the victim was not a robust man and was clearly no match for a person of the size and underlying anger of the applicant. Despite that, the Judge was not satisfied that the applicant had intended to kill the victim, but was satisfied that he had an intention to inflict grievous bodily harm.
The Judge summarised the contents of the victim impact statements and the personal circumstances of the applicant, including his health problems. After referring to the applicant’s lengthy criminal history and the sentencing remarks relating to the two previous assault charges, the Judge stated that the applicant’s history of offending, coupled with his age, made his prospects of rehabilitation poor.
The Judge also stated that he took into account the fact that the applicant had pleaded guilty to manslaughter before the jury and thereby accepted that he had caused the death of the victim. Although the applicant was significantly intoxicated, that did not excuse his belligerent, domineering and bullying conduct during the day leading up to the murder.
The Judge stated that for reasons that were unknown, the applicant had savagely and viciously attacked a man who had not done him any harm and who had been happy to have him at his house. His Honour also referred to the fact that the applicant had demeaned the victim by placing a fruit cake on his head.
The Judge also stated that “[n]o doubt you were proud of your efforts as your subsequent bragging demonstrated.” His Honour supported that observation by reference to the fact that the applicant had told persons present at Heysen Parade after the murder that he had “stomped on some cunt’s head”.
The Judge referred to the defence submission that the unpremeditated nature of the killing could be described as a sudden quarrel which warranted a sentence at the lower end of the range. His Honour also referred to the prosecution submission that the murder was not at the lower end of objective seriousness due to the prolonged and vicious attack.
After recording that he had taken into account all of the circumstances, including the seriousness of the offending and matters personal to the applicant, his Honour sentenced the applicant to life imprisonment and fixed a non-parole period of 24 years. That period was to commence from 1 February 2017 when the applicant was first taken into custody.
The applicant’s submissions
Ground 1.1 – manifestly excessive
While acknowledging the inherent seriousness of the offence of murder, the applicant contends the circumstances of his offending are informed by the fact that he has struggled with alcohol abuse for the majority of his adult life. The environment in which he was raised included his father’s alcohol addiction, and the prevalence of alcohol abuse in Aboriginal communities. These matters inform the circumstances of his offending. The applicant draws support for this submission from the observations made by the High Court in Bugmy v The Queen[3] and the discussion of that case by this Court in R v Pennington.[4] In the latter case, the Court held that membership of a particular ethnic group becomes relevant to sentencing when it tells the Court something about the offence or the offender that is relevant to the determination of the appropriate penalty. The applicant also notes that in R v Tjami[5] this Court had affirmed and applied the principles established in R v Fernando[6] in relation to Aboriginality and alcohol abuse.
[3] (2013) 249 CLR 571.
[4] [2015] SASCFC 98.
[5] (2000) 77 SASR 514.
[6] (1992) 76 A Crim R 58.
The applicant notes that s 48(1) of the Sentencing Act 2017 (SA) provides that the mandatory minimum non-parole period of 20 years for the offence of murder applies to offences at the lower end of the range of objective seriousness. Section 48(2)(a) provides that the Court may fix a longer non-parole period if it is satisfied that that is warranted because of any objective or subjective factors affecting the relative seriousness of the offence.
In R v Hallcroft, Kourakis CJ explained that “objective seriousness” means more than just the actus reus of the offence and includes other factors such as whether there was an intention to kill as compared to an intention to cause grievous bodily harm.[7] In Hallcroft, Kourakis CJ had cited with approval the remarks made by King CJ in R v Stewart in relation to the grading of the seriousness for offences of murder.[8] King CJ had referred to murders as warranting a shorter non‑parole period where the crime was committed by a first offender, particularly in compassionate circumstances, unpremeditated killings occurring during a sudden quarrel or emotional disturbance and crimes where there was not an intent to kill but rather an intention to do grievous bodily harm.
[7] (2016) 126 SASR 415 at 425-426 [43] (Kourakis CJ).
[8] Ibid at 426 [45] (Kourakis CJ) quoting (1984) 35 SASR 477 at 478-479 (King CJ).
The applicant submits that the offending in this case can properly be characterised as at the lower end of the range of objective seriousness for the offence of murder. In support of that submission the applicant refers to the fact that the offending was not premeditated. That contention was supported by the fact that the applicant and the victim had been seen talking and laughing together several hours prior to the murder.
The applicant also refers to the fact that the sentencing Judge proceeded on the basis that he had formed an intention to cause grievous bodily harm rather than an intention to kill. His state of mind was also influenced by his significant intoxication. He further contends that his conduct can be characterised as the product of a sudden quarrel or emotional disturbance that resulted in a sudden eruption of violence. There was no readily apparent cause for the sudden outbreak of violence. Albeit that the victim suffered a number of other injuries, the expert evidence of Dr Gilbert indicated that the cause of death was a single stomp. Furthermore, the seriousness of the injuries caused to the victim may not have been immediately apparent to the applicant. The fact that he was located by the police several hours later still wearing blood-stained clothing and while continuing to drink was said to evidence that fact. In light of these several circumstances, the applicant submits that the non-parole period of 24 years was manifestly excessive and the non-parole period should have been fixed at 20 years.
The applicant also submitted that the totality principle applies to the setting of a non-parole period in relation to a life sentence for murder.[9] The fixing of the non-parole period at 24 years means that the applicant will be eligible for parole when he is around 75 years of age. The applicant submits that such a sentence is crushing and this reinforces the submission that the sentence is manifestly excessive.
[9] R v Peet [2018] SASCFC 91 at [91] (Kourakis CJ, Doyle and Hinton JJ).
The applicant submits that a sentence may be crushing when it destroys any reasonable expectation of a useful life after release.[10] In those circumstances considerations of mercy have a place.[11] When setting a non-parole period, the Court must have regard to not only the number of years that the defendant will spend in prison by reason of the non-parole period, but also the relationship of that non-parole period to the normal span of the prisoner’s life. That requires the prisoner’s age to be taken into account.[12]
[10] R v Yates [1985] VR 41.
[11] R v Osenkowski (1982) 30 SASR 212.
[12] R v von Einem (1985) 38 SASR 207 at 220 (King CJ, with Jacobs and Olsson JJ agreeing).
Grounds 1.2 and 1.3 – the applicant’s prospects of rehabilitation and his contrition and remorse
The applicant submits that the Judge failed to give any or adequate regard to his plea of guilty to manslaughter, the conduct of the trial and his overall personal circumstances when determining that his prospects of rehabilitation were poor. The applicant also contends that his guilty plea to manslaughter was relevant when assessing his contrition and remorse. However, the Judge made no reference to contrition and remorse in his sentencing remarks. While the Judge did note in his remarks the plea of guilty to manslaughter, this Court cannot infer that his Honour took into account that plea when determining the applicant’s prospects of rehabilitation and also his contrition and remorse.
The applicant submits that although a plea of guilty may be cogent evidence of contrition, it does not follow that a plea of not guilty necessarily indicates lack of contrition. In R v Lane,[13] the applicant’s plea of guilty to manslaughter narrowed the scope of the forensic contest at trial to the question of whether the prosecution could exclude beyond reasonable doubt that the applicant had not formed the necessary specific intention to kill or cause grievous bodily harm to the victim. In other words, the only issue was the applicant’s state of mind. The effect of his guilty plea to manslaughter was to accept responsibility for the death of the victim and to admit before the jury the actus reus of the offence. These matters were relevant to the assessment of contrition and remorse and thus his prospects of rehabilitation.
[13] (1990) 53 SASR 480 at 481-482 (Jacobs ACJ), 490 (Mullighan J).
The applicant submits that the Judge erred in not considering the fact that the applicant’s guilty plea to manslaughter narrowed the scope of the trial. His Honour also erred in assessing the applicant’s rehabilitation prospects and in his finding concerning lack of contrition and remorse. Had the Judge considered these issues, the applicant contends that the non-parole period would have been substantially less than 24 years.
Ground 2 – failure to make a finding as to objective seriousness and/or give adequate reasons
The applicant observes that the only statement made by the Judge by way of explanation for the non‑parole period being fixed as 24 years was “[t]aking into account all of the circumstances, including the seriousness of the offending and matters personal to you, I fix a non-parole period of 24 years.” In this light, the applicant submits that the Judge failed to give any or adequate reasons for fixing the non-parole period at 24 years.
The applicant also submits that the Judge erred by fixing the non‑parole period without having made a finding concerning the objective seriousness of the offending. Resolution of that issue was critical because of the competing submissions from the prosecution and the defence as to where the matter fell within the range of objective seriousness. The applicant draws support for this submission from the observations made by Stanley J in R v Saleh, where his Honour stated that “sentencing remarks must be sufficient to enable an appellate court to identify and understand the reasoning of the judge”. [14]
[14] [2017] SASCFC 75 at [35] (Stanley J).
Section 48(2)(a) of the Sentencing Act required the Judge, when determining whether a non-parole period longer than the mandatory minimum of 20 years was warranted, to consider both the objective and subjective factors relevant to the offending. However, the applicant submits that the sentencing remarks do not reveal the reasoning process undertaken by the Judge with respect to the objective and subjective factors, nor did his Honour indicate the weight attributed to these factors. Because of the paucity of the sentencing remarks, this Court cannot adequately assess the reasoning process that led to the Judge’s conclusion that a longer than the minimum non-parole period was warranted.
The respondent’s submissions
Grounds 1.2 and 1.3 – manslaughter guilty plea and remorse
Although the applicant was sentenced on the basis that he intended to cause grievous bodily harm rather than to kill the victim and the offence was not premeditated, the respondent observes that the attack was prolonged and vicious, involved the use of multiple implements and concluded with the act of degradation involved in placing the fruit cake on the head of the victim.
The respondent submits that while in some instances a rejected plea of guilty to manslaughter may indicate remorse, in other cases it may simply be an acknowledgment of an inevitable outcome. Thus, it is necessary to consider all the circumstances. The actions of the defendant immediately after the offence were the antithesis of what might be expected of a person who was contrite and remorseful. In that respect, the respondent refers to the action of the applicant in placing a fruit cake on the head of his victim after inflicting the lethal blow, and his subsequent bragging about what he had done. The applicant also waited until the morning of his trial to enter his plea to manslaughter when there was overwhelming evidence that he had caused the death of the victim.
For these reasons, the respondent submits that remorse cannot be inferred from the plea. Furthermore, at no point in the sentencing submissions did the applicant suggest that he was remorseful. He also did not dispute the prosecutor’s submission that there was no evidence of remorse. His only relevant submission was that his plea and his conduct at the trial had hopefully minimised the effect upon the witnesses. That submission was effectively a reference to the utilitarian benefit of the plea rather than an indication of remorse.
Although the applicant was not obliged to do so, his failure to provide a basis for his plea to manslaughter, and also his failure to provide a reason for the attack during the sentencing submissions, resulted in there being a lack of evidence demonstrating remorse. The absence of remorse was relevant to the finding by the Judge that the applicant’s prospects of rehabilitation were poor.
The respondent also submits that the frequent appearances of the applicant before the courts over 30 years, and the entrenched disobedience to the law which that demonstrated, weighed against any finding other than that his rehabilitation prospects were poor. The evidence at the trial, his history of offences involving excess of alcohol while driving, property damage and assault, and also the sentencing remarks from 1994 and 2003, indicate that this was a man with a deep-seated and longstanding issue of substance abuse, and “underlying anger” which was not always kept under control. The combined effect of these factors was to support strongly the finding by the Judge that the applicant’s rehabilitation prospects were poor.
The respondent submits that the only further issue is whether a willingness to facilitate the course of justice, indicated by the guilty plea to manslaughter, was a factor which required the Judge to find that his prospects of rehabilitation were not poor. His Honour expressly stated that he took into account the manslaughter plea, and the applicant’s acceptance that he caused the death of the victim. For that reason, the respondent submits that there was no process error. The weight to be given to the guilty plea was a matter for the Judge. This Court can only find that there was an error in the sentencing process if it concludes that there was no basis for the finding by the Judge that the applicant’s rehabilitation prospects were poor. To the contrary, the respondent submits that the finding by the Judge was clearly open and supported by the matters previously noted. Because the guilty plea to manslaughter came very late, it was of no benefit to the preparation for trial and the proofing of witnesses. It did not result in any witnesses not being called as it was still necessary to establish the mental element of the offence. Because each witness had to recount all the events, it is doubtful that the plea reduced their trauma. The late plea by the applicant reflected an acceptance of the inevitable rather than a change of heart.
Grounds 1.1 and 2 – manifestly excessive and objective seriousness
The respondent submits that there is no requirement for a sentencing Judge to make a specific finding as to where on the scale of objective seriousness a particular offence is placed. The respondent also submits that such a process would be unhelpful, as there will be a range of appropriate sentences within any particular level of seriousness. The respondent does not submit that objective seriousness is either irrelevant or can be ignored. The point made by the respondent is that a specific finding concerning objective seriousness is not required. Provided that the non-parole period is fixed by having regard to the requirements of s 48 of the Sentencing Act, and provided also that factual findings are made in relation to matters which may affect the object seriousness of an offence, the proper process has been followed. All that is necessary is that the defendant and an appellate court are aware of the factual basis upon which the sentence has been imposed. That is sufficient for an appellate court to perform its function. Thus, the sentencing remarks delivered by the Judge are not inadequate.
The respondent submits that the issue for this Court to decide is whether the non‑parole period of 24 years was outside the range reasonably available to the Judge, having regard to the provisions of s 48, the personal circumstances of the applicant and the circumstances of his offending.
In response to the emphasis placed by the applicant on the fact that the killing was not premeditated, the respondent submits that although premeditation will often indicate that an offence is a more serious example of its type, the lack of premeditation does not necessarily indicate that an offence is at the lower end of objective seriousness. The objective seriousness of an offence will depend on many considerations.
The only finding in relation to lack of premeditation is that the applicant had not planned to attack the victim when he went to his house. However, it cannot be assumed that the killing was spontaneous or that it occurred without time to reflect. There was evidence suggesting that the attack had been motivated by rival affections for a woman. However, the applicant has not advanced any mitigating explanation. It must therefore be inferred that the reason for the attack was jealousy.
The respondent submits that the duration of the attack on the victim, and the manner in which his injuries were inflicted, suggests that the act which caused his death was not spontaneous or unpremeditated. The stomping of the victim’s head while he lay prostrate on the floor was undertaken with an intention to cause grievous bodily harm while he was clearly defenceless, and in circumstances where the applicant later admitted that he had stomped on the victim so as to get blood to come out of his ears. That was plainly not a spontaneous or impulsive single act. The applicant was also more robust than the victim, who was fatally injured at a time when he was prostrate on the floor and posed no threat to the applicant. In these circumstances, the fact that he had not gone to the house with the intention of causing grievous bodily harm to the victim did not reduce his moral culpability. The only significance for the lack of premedication was that a factor which would have added to the objective seriousness of the offence was missing.
The fact that the applicant did not have an intention to kill does not establish that the offence was at the lower end of objective seriousness. Given the clear intention to cause grievous bodily harm to a defenceless victim, the fact that the applicant did not intend to kill does not indicate that the offence was at the lower end of objective seriousness.

Further to that submission, the respondent adds that this was not a case where the applicant was being sentenced for a single impulsive action that occurred during a sudden loss of temper and which was unlikely to occur again. It was also not the case that the applicant had expressed immediate remorse, or had benefited from previous leniency extended to him by the courts. In a case where a defendant has shown themselves willing to engage in vicious violence, whether caused by intoxication or some other factor, the need for personal deterrence and the protection of the community are important considerations when determining their non-parole period. The applicant’s criminal history, his absence of remorse and the circumstances of the attack were consistent with the belligerent and bullying behaviour of the applicant so that both personal deterrence and the protection of the community were important sentencing considerations. Accordingly, the non-parole period of 24 years was appropriate.
Contrary to the submission by the applicant, the respondent submits that the totality principle is not relevant in this case. Totality was only a relevant consideration in R v Peet because the defendant was sentenced for three offences of murder.[15]
[15] [2018] SASCFC 91.
The respondent also submits that the age of the applicant did not require any reduction in what was an appropriate sentence. The fact that the applicant will be aged in his mid-70s when he becomes eligible for parole is simply the product of his age at the time of the offence, his poor rehabilitation prospects, his failure to respond to previous leniency and the need for the sentence to reflect both the seriousness of the offending and general deterrence.
While acknowledging that the applicant’s Aboriginality is a relevant factor in sentencing, the respondent points out that there had been no submission to the sentencing Judge that the applicant’s Aboriginality somehow explained the particular offence. To the contrary, the respondent submits that the only evidence before the Judge was that the applicant had acted out of jealousy. It was not apparent what his Aboriginal background had to do with his decision to assault the victim viciously because of a disagreement about a woman. The respondent further submits that there was no evidence before the Court that the applicant had been exposed to extreme violence through his childhood and formative years. The only information put before the Judge was that the applicant’s father was an alcoholic, but he did not have a lot of contact with him other than seeing him on holidays. While the applicant had wanted to live with his father, his mother would not permit this. The applicant recalls that his mother’s new partner treated him quite well. In these circumstances, and taking into account that the applicant did not provide any explanation to the Court for his conduct, the respondent submits that his Aboriginality did not explain the offending.
Consideration
I accept the correctness of the respondent’s submission that the totality principle was not relevant to the sentencing of the applicant. While this Court held in R v Peet that the totality principle is relevant to the setting of a non‑parole period in relation to a life sentence for murder, that observation was made in a case where the appellant had been sentenced for three murders.[16] The totality principle does not apply where a defendant is being sentenced for a single offence.
[16] [2018] SASCFC 91 at [91] (Kourakis CJ, Doyle and Hinton JJ).
I turn to the applicant’s complaint that his age was not properly recognised in setting the non‑parole period. The applicant’s sentence was backdated to 1 February 2017 when he was taken into custody. At that time, he was aged 50 years. Thus, he will be aged 74 years when he becomes eligible for parole.
In Gulyas v Western Australia, Steytler P (with McLure and Miller JJA agreeing) identified the following principles as being relevant to the sentencing of aged offenders:[17]
It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present:
(1)     Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.
(2)     Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.
(3)     Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.
(4)     Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.
[17] (2007) 178 A Crim R 539 at 552 [54] (Steytler P).
The first consideration identified by Steytler P is clearly not relevant in this case. The applicant was aged 50 years when he committed the offence. That is clearly not an advanced age. Moreover, there is nothing in the circumstances of the offence which suggests that his moral culpability was in any way reduced by reason of his age. The second consideration referred to by Steytler P is also clearly not relevant. While the applicant has several medical conditions, there is nothing to suggest that these conditions will make his imprisonment significantly more arduous than would ordinarily be the case.
The third and fourth considerations referred to by Steytler P may be considered together. As Steytler P observed, regardless of the age, the punishment must still reflect the seriousness of the crime. Thus, in R v Cave this Court dismissed an appeal by a 56-year-old man who had been sentenced to imprisonment for 50 years with a non‑parole period of 33 years.[18] The appellant in that case had been convicted of a very large number of sexual offences of the most serious type against children. While the present applicant will be an elderly man when he becomes eligible for parole, that is the result of him being aged 50 years when he committed a brutal murder.
[18] [2012] SASCFC 42.
I turn to the submissions advanced on behalf of the applicant based on his Aboriginality. The principle stated by the High Court in Bugmy v The Queen may be summarised as follows:[19]
·When sentencing an Aboriginal offender, a method of analysis should not be adopted which differs from that applied when sentencing a non‑Aboriginal.
·However, the deprived background of an Aboriginal offender may mitigate the sentence otherwise appropriate for the offence in the same way as would the deprived background of a non-Aboriginal.
·Where the misuse of alcohol by an offender reflects the environment in which he or she was raised, as is the case of some Aboriginal offenders who are raised by communities characterised by alcohol abuse and alcohol related violence, that fact should be taken into account as a mitigating factor.
·Aboriginality may also be relevant where, because of a defendant’s background or lack of experience of European ways, a lengthy term of imprisonment might be particularly burdensome.
·The courts cannot take judicial notice of any systemic background of deprivation of Aboriginal offenders. Where an offender relies on his or her deprived background in mitigation of sentence, they must point to material tending to establish that background.
·The effects of profound childhood deprivation do not diminish with the passage of time or repeated offending. Such a background is to be given full weight in sentencing. The background may point in one direction in relation to one of the purposes of punishment, such as moral culpability, and in a different direction in relation to another purpose, such as the importance of protecting the community.[20]
[19] (2013) 249 CLR 571.
[20] In Tjami, this Court adopted the similar principles expressed in Fernando concerning the proper approach to Aboriginality and alcohol abuse in the sentencing process.
Although the Judge did not refer to the applicant’s Aboriginality in his sentencing remarks, it is very likely that this was because the applicant’s counsel (not the senior counsel who appeared on the appeal) did not make any mention whatsoever of that issue in his sentencing submissions. However, his Honour did refer to the circumstances of the applicant’s upbringing. His Honour noted that the applicant had been brought up by his mother in Tailem Bend as one of six children, and his father was an alcoholic. His Honour also noted that the applicant had been sexually assaulted by a neighbour as a child.
As the High Court observed in Bugmy, where an offender relies on his deprived background in mitigation of sentence, he must point to material tending to establish that background. While the applicant is a member of the Aboriginal community, the only additional information put before the Court relevant to the question of deprivation is that he was brought up by his mother as one of six children, his father was an alcoholic and he was a victim of childhood sexual abuse. Those matters were taken into account by the Judge. The Court was also informed that his mother was a teacher and his father had been a bus and truck driver. There has been no suggestion that the applicant was exposed to violence in his early years.
The limited information put before the Court about the circumstances of the applicant is materially different from that of the appellants in Bugmy and in Tjami.[21]The High Court noted in Bugmy that the appellant had grown up in an Aboriginal household in Wilcannia where alcohol abuse and violence were frequent, he had little formal education and was illiterate. He started drinking alcohol and taking prohibited drugs when aged 13 years. He had witnessed his father stabbing his mother ﬁfteen times.
[21] (2000) 77 SASR 514.
The appellant in Tjami came from a tribal Aboriginal community on the APY Lands, spoke and understood little English and had little education. He was unable to communicate effectively with prison officers and was to be imprisoned at Port Augusta, which was more than 1000 km from his homeland, thereby making it difficult for family and friends to visit him.
In contrast to the circumstances of the appellants in Bugmy and Tjami, the applicant speaks English as his first language, it is not suggested that his upbringing had been disturbed by violence, his mother was a teacher and he attended high school in a regional city until part way through year 12. He has also completed several TAFE courses, including courses in business management and community services.
In view of the matters to which I have referred, and in particular the failure of the applicant’s counsel in sentencing submissions to make any reference to deprivation arising from his Aboriginal background, I do not consider that the Judge erred in failing to refer specifically to the applicant’s Aboriginality in his sentencing remarks.
I do not consider that the fact that the applicant pleaded guilty to manslaughter was indicative of remorse. The late timing of the plea suggests that it was a pragmatic recognition of the inevitability that he would be found to have caused the death of the victim. The evidence supporting such an outcome was overwhelming. The failure of the applicant to provide any explanation in the sentencing process of his conduct also points towards a lack of remorse.
The lack of remorse supports the finding by the Judge that the rehabilitation prospects of the applicant were poor. In that light, I agree with the submission of the respondent that the applicant’s long history of disobedience of the law, including two prior convictions for significant offences of assault, together with the clear difficulty shown by the applicant over the course of 1 February 2017 in controlling his anger, all combine to support his Honour’s conclusion that the applicant’s rehabilitation prospects were poor.
While it is correct that the Judge did not make a specific finding as to the objective seriousness of the applicant’s offending, it is apparent from his Honour’s sentencing remarks that he did not consider the circumstances of this offence to be at the lowest end of objective seriousness.
In that respect, the Judge noted that the behaviour of the applicant over the course of day leading up to the murder was belligerent, domineering and bullying. His Honour found that the significant intoxication of the applicant did not excuse this behaviour. His Honour also referred to the savage and vicious nature of the attack on the victim, followed by the demeaning act of placing a fruit cake on the victim’s head, which was then followed by bragging to his associates about the brutality of the attack on the victim. For these reasons, I reject the applicant’s submission that the Judge erred by failing to specify the objective seriousness of the offence.
Even if I am wrong in my conclusion that there was no process error apparent in the Judge’s sentencing remarks, I do not consider that there was an outcome error. In other words, I do not consider that the non-parole period of 24 years was excessive. The applicant engaged in a prolonged and brutal attack on a victim who, because of his age and poor health, was unable to effectively defend himself. The evidence given by Dr Gilbert leaves no doubt as to the brutality and sustained nature of the applicant’s conduct. That brutality was compounded by the demeaning act of placing the fruit cake on the victim’s head, and the disparaging and contemptuous remarks that the applicant made to his associates after the murder. In those circumstances, I consider that the non‑parole period of 24 years was squarely within the range reasonably available to the sentencing Judge.
Conclusion
I would grant an extension of time within which to file the notice of appeal until 5 July 2019 (when the amended notice of appeal was filed).
I would grant permission to appeal on each ground but dismiss the appeal.
DAVID AJ: I would dismiss the appeal. I agree with the reasons of Parker J and the orders he proposes.