Trott-Dan v The King
[2023] SASCA 2
•2 February 2022
Supreme Court of South Australia
(Court of Appeal: Criminal)
TROTT-DAN v THE KING
[2023] SASCA 2
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
2 February 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
On 22 April 2022, following guilty pleas, the appellant was convicted and sentenced for a series of offences involving his former domestic partner which occurred between 12 October 2019 and 30 June 2020. A suspended sentence was also revoked.
The individual sentences for each offence were ordered to be served cumulatively except in respect of two offences (Counts 3 and 4), for which a single penalty was imposed pursuant to s 26 of the Sentencing Act 2017 (SA).
When revoking the suspended sentence, the sentencing Judge ordered the appellant to serve an incorrect sentence of 19 months and 24 days as a result of a typographical error recorded on part of the suspended sentence bond. The correct sentence was in fact 16 months and 13 days. The incorrect revoked suspended sentence was ordered to be served cumulatively upon the sentences for the other offences. That resulted in a nominal head sentence of four years, nine months and 28 days imprisonment, which was reduced on account of time served in custody to two years, five months and three days imprisonment. A non-parole period of one year, 11 months and nine days was fixed, which equates to approximately 80 per cent of the head sentence.
The sentencing Judge found that there was not good reason to suspend the sentence (either wholly or partially) and declined to make a home detention order.
The appellant now appeals against the sentence on the following grounds:
• The sentence and non-parole period imposed was manifestly excessive (Grounds 1 and 2);
•The sentencing Judge erred by not ordering partial concurrency of the individual terms of imprisonment (Ground 3);
•The sentencing Judge erred by not ordering wholly concurrent sentences for those offences committed on 24 October 2019 (Counts 3 and 4) and 2 November 2019 (Counts 10, 11, 12) (Ground 4); and
•The sentencing Judge erred by revoking the suspended sentence bond on the basis that it was invalid and unenforceable (Ground 5).
Held, per the Court, granting permission to appeal on Grounds 1, 2 and 5, and allowing the appeal on Ground 2:
1. The sentence of the District Court of South Australia is set aside.
2.While the head sentence is at the higher end of the permissible range, it is not manifestly excessive.
3. There was no process error by the sentencing Judge in not ordering that the individual sentences be served wholly or partially concurrently.
4.The non-parole period of almost 80 per cent of the head sentence is outside of the permissible range and manifestly excessive.
5.The suspended sentence bond is not invalid or unenforceable and the sentencing Judge was not in error in revoking it. However, the sentence revoked was incorrect.
6.The appellant is re-sentenced to a head sentence of three years and one month imprisonment to be served cumulatively on the revoked suspended sentence of 16 months and 13 days. This results in a head sentence of four years, four months and 17 days. A non-parole period of three years and one month is fixed. The head sentence and non-parole period is to commence on the date the appellant was taken into custody, being the 29 November 2019.
7. An intervention order is imposed in the same terms as presently in place.
Criminal Law Consolidation Act 1935 (SA) ss 19(2), 20(3), 20(4), 85(2), 248(1); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Sentencing Act 2017 (SA) ss 20, 22, 26, 44, 44(2)(a), 44(2)(b), referred to.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; Bugmy v The Queen (1990) 169 CLR 525; Chatterton v Police (SA) (2020) 136 SASR 431; Day v The Queen [2021] SASCA 38 ; Dinsdale v The Queen (2000) 202 CLR 321; Director of Public Prosecutions (Cth) v Cole (2005) 91 SASR 480; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Fischer v Chambers (1972) 4 SASR ; Frank v The Police (2000) 77 SASR 273; Hebberman v Police [2010] SASC 98; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Johnson v The Queen (2004) 78 ALJR 616; Kentwell v The Queen (2014) 252 CLR 601; Mann v Yannacos (1977) 16 SASR 54; Markarian v The Queen (2005) 228 CLR 357; Mill v The Queen (1988) 166 CLR 59; Ndreka v The Queen [2021] SASCA 11; Nguyen v R (2016) 256 CLR 656; Nollen v Police (2001) 78 SASR 421 ; R v Abdulla (2011) 109 SASR 258; R v Cassidy [2017] SASCFC 134; R v Copeland (No 2) (2010) 108 SASR 398; R v Curry [2016] SASCFC 16; R v Deng [2015] SASCFC 176; R v Devries [2018] SASCFC 101; R v Greengrass (2009) 104 SASR 262; R v Horstmann [2010] SASC 103; R v Hudson (2016) 125 SASR 171; R v MacGowan [2012] SASCFC 138; R v Malesevic (1999) 204 LSJS 32; R v Mark [2019] SASCFC 48; R v McHugh (1985) 1 NSWLR 588; R v McIntyre (2020) 138 SASR 17; R v Miller (2000) 76 SASR 151; R v Morse (1979) 23 SASR 98; R v Moyle (1996) 186 LSJS 462; R v Nedza [2013] SASCFC 142; R v Newman (2004) 145 A Crim R; R v Pahuja (No 2) (1989) 50 SASR 551; R v Palmer [2016] SASCFC 34; R v Parsons [2019] SASCFC 43; R v Shrestha (1991) 173 CLR 48; R v Standley [2016] SASCFC 141; R v Tilley [2010] SASCFC 73; R v Tsonis (2018) 131 SASR 416; Ribbon v The Queen [2022] SASCA 15; White (A Pseudonym) v The Queen [2022] SASCA 78, considered.
TROTT-DAN v THE KING
[2023] SASCA 2Court of Appeal – Criminal: Lovell, Doyle and David JJA
THE COURT:
On 22 April 2022, following guilty pleas, the appellant was convicted and sentenced for a series of offences involving his former domestic partner, and a suspended sentence bond entered into on 6 August 2019 was revoked. The appellant was sentenced to imprisonment for four years, nine months, and 28 days. That sentence was reduced by two years, four months, and 25 days on account of time spent in custody. Accordingly, a head sentence of two years, five months, and three days imprisonment was imposed. A non-parole period of one year, 11 months, and nine days was fixed.
The sentencing Judge found that there was not good reason to suspend the sentence (either wholly or partially) and declined to make a home detention order.
The penalties imposed by the sentencing Judge were as follows:
Ct(s)
Offence
Factual details
Maximum penalty
Discount applied
Sentence imposed
File Number DCCRM-20-854 2
Property damage, contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA) (the ‘CLCA’).
On 12 October 2019, the appellant punched and broke a bedroom door at the property of KPS.
10 years imprisonment.
five per cent.
Three months imprisonment reduced by five per cent to two months and 26 days.
3 Aggravated assault with an offensive weapon, contrary to s 20(3) of the CLCA. On 24 October 2019, the appellant hit KPS on the upper back with a half-full 1.25 litre plastic bottle. 4 years imprisonment. five per cent. 12 months imprisonment reduced by five per cent to 11 months and 13 days; s 26 of the Sentencing Act 2017 (SA) (the ‘Sentencing Act’) applied. 4
Aggravated assault with an offensive weapon, contrary to s 20(3) of the CLCA.
On 24 October 2019, the appellant hit KPS in the thigh multiple times with the base of a pot plant.
4 years imprisonment.
five per cent.
s 26 of the Sentencing Act applied in respect of Counts 3 and 4.
10
Aggravated assault, contrary to s 20(3) of the CLCA.
On 2 November 2019, the appellant grabbed KPS’ T-shirt so that it dug into her neck and caused KPS difficulty breathing. He then jammed his fingers down her throat.
3 years imprisonment.
five per cent.
Six months imprisonment reduced by five per cent to five months and 22 days.
Ct(s)
Offence
Factual details
Maximum penalty
Discount applied
Sentence imposed
11
Aggravated assault causing harm, contrary to s 20(4) of the CLCA.
On 2 November 2019, the appellant grabbed KPS’ hand and squeezed it tightly before throwing it back towards her forcefully, fracturing her left index finger.
4 years imprisonment.
five per cent.
Six months imprisonment reduced by five per cent to five months and 22 days.
12
Aggravated assault threatening to cause harm, contrary to s 19(2) of the CLCA.
On 2 November 2019, the appellant placed the sharp edge of a knife against KPS’ hand and threatened: ‘I will fucking end you, I will finish you for good…’.
7 years imprisonment.
five per cent.
Ten months imprisonment reduced by five per cent to nine months and 16 days.
13
Threatening a person involved in judicial proceedings, contrary to s 248(1) of the CLCA
Between 6 December 2019 and 7 February 2020, whilst remanded in custody, the appellant contacted and made various threats toward KPS.
10 years imprisonment.
five per cent.
Three months imprisonment reduced by five per cent to two months and 26 days.
File Number MCPAD-20-3436 1, 4, 7, 12, 38
Contravention of an intervention order, contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the ‘IOA’).
Between 6 December 2019 and 1 February 2020, the appellant repeatedly contacted KPS while in custody.
First contravention: 3 years imprisonment.
Subsequent contravention: 7 years imprisonment.
five per cent.
Conviction without further penalty.
File Number MCPAD-20-4578 1, 4, 6, 7
Contravention of an intervention order contrary to s 31(2) of the IOA.
Between 23 and 30 June 2020, the appellant repeatedly contacted KPS while in custody.
First contravention: 3 years imprisonment.
Subsequent contravention: 7 years imprisonment.
five per cent.
Conviction without further penalty.
Appeal grounds
The appellant complains that the sentence and non-parole period imposed were manifestly excessive (Grounds 1 and 2, respectively); that the sentencing Judge erred by not ordering partial concurrency of the individual terms of imprisonment (Ground 3); that the sentencing Judge erred in not ordering wholly concurrent sentences for those offences committed on 24 October 2019 (Counts 3 and 4) and 2 November 2019 (Counts 10, 11 and 12) (Ground 4); and the sentencing Judge erred by revoking the suspended sentence on the basis it was invalid and unenforceable (Ground 5).
Permission to appeal was granted on Grounds 3 and 4. The question of permission to appeal on Grounds 1 and 2 was referred to this Court for consideration. Leave to add an additional ground of appeal, being Ground 5, was granted at the appeal hearing. The question of permission to appeal on that Ground was also referred to this Court for consideration.
Circumstances of the offending
On 12 October 2019, the victim, KPS, was at her home with the appellant and their son, A. The appellant and KPS began arguing after KPS noticed a bank card belonging to the appellant’s ex-girlfriend fall out of his bag. During this argument, the appellant proceeded to punch the bedroom door next to KPS until there was a crack in the door (Count 2). The appellant left the bedroom, where KPS remained, and began packing his belongings. KPS heard a loud banging coming from the spare room and later saw that there was a crack in the door to the spare room that had not been there previously. The appellant then left the premises with A. KPS did not report this incident to police at the time because she was afraid and embarrassed.
On 24 October 2019, the appellant and KPS had an argument about arrangements in relation to A. During this argument, KPS said she knew the appellant was messaging his ex-girlfriend. The appellant proceeded to hit KPS with force on her upper back with a 1.25 litre plastic bottle, which was half full at the time (Count 3).
KPS then arranged for her sister to come and collect A. KPS showed her sister the mark on her back. After KPS’ sister left with A, she returned to her unit where the appellant, who was still angry with KPS, attempted to pick up a bookshelf causing a fake plant in a gold tin to fall to the floor. He picked up the plant and slammed the gold tin base into her thigh multiple times, leaving a bruise (Count 4). Police were called to attend at the property.
Upon police attendance, the appellant was deemed a trespasser and prohibited from attending the property for 24 hours. Whilst KPS was in the presence of police, the appellant sent her threatening messages. One of those messages read: ‘But if you decide to try and cause any drama that impacts on my life whatsoever, it won’t end well.’
On the evening of 2 November 2019, KPS messaged the appellant about a piece of paper she had found with the name and telephone number of another girl written on it. An argument via text messages ensued between them. At about 10:14pm, KPS posted about the appellant on Facebook.
At about 10:30pm, the appellant went to KPS’ house and banged against the window. KPS let the appellant inside and they began to argue. The appellant threw a glass against the wall and began questioning KPS about the Facebook post. He followed her into the bedroom and demanded her phone. The appellant then grabbed KPS by the T-shirt, scrunched it up, and pushed her arm against her face. KPS begged the appellant to stop, which he did. The appellant then told KPS to go to the lounge room.
Once in the lounge room, KPS complained of being in pain. The appellant responded by telling KPS to ‘shut the fuck up’ and grabbing her firmly by the T‑shirt, so that it dug into her neck and reduced her ability to breathe. The appellant proceeded to jam his fingers into the middle of her throat until she began to feel dizzy and disoriented (Count 10).
In attempting to get away, KPS kicked the appellant and pushed him in the stomach. The appellant responded by pushing KPS to the ground and threatening to kick her in the head before spitting in her face and kicking her right leg. When KPS attempted to fight back by pushing the appellant and punching him in the stomach, he grabbed her left hand and squeezed it tightly before releasing it forcefully (Count 11). This caused her hand to feel heavy and throb.
The appellant proceeded to hold KPS’ arms from behind her whilst placing the sharp edge of a knife against her hand. At this point he said to her, ‘I will fucking end you, I will finish you for good. If the police come here, look out dog.’ (Count 12). KPS was left with a 4 cm red mark and a small cut to her hand. The appellant left KPS’ address after she began to hyperventilate.
A subsequent medical examination revealed that KPS had sustained a fractured left index finger and significant bruising. Red marks were also observed on several parts of her neck.
The appellant was arrested on 29 November 2019 and has been remanded in custody since that time. An intervention order was subsequently imposed in which KPS was named as the protected person.
Between 6 December 2019 and 7 February 2020, whilst remanded in custody, the appellant repeatedly communicated with KPS attempting to persuade her to withdraw the charges against him. This communication occurred through the appellant’s mother, E, who contacted KPS on his behalf. There were conference calls between the appellant, KPS, and E during which he told KPS that he was struggling in prison and asked that she speak to the police about withdrawing the charges against him (Count 13).
From 5 December to 11 December 2019, the appellant told his mother to send KPS messages saying that he had been crying for her and their son, A. In a conference call between the appellant, KPS, and E on 13 December 2019, the appellant made statements to KPS which implied that he may kill himself and get his family to harm her. KPS terminated that call and the two calls that followed. By 22 December 2019, the appellant had obtained a telephone number for KPS which he used to call her on the prison system under the alias of ‘Harry Dye’. The appellant called KPS about 30 times between mid-December 2019 and the beginning of February 2020. He also contacted KPS multiple times in June 2020. Those phone calls form the basis of nine counts of contravening an intervention order charged on two separate Magistrates Court Informations.
On 6 August 2019, the appellant was convicted of several offences in the Magistrates Court and sentenced to 16 months and 13 days imprisonment with a non-parole period of three months. The sentence was suspended upon the appellant entering a bond to be of good behaviour for two years. The appellant subsequently breached that bond and, in accordance with the conditions of the bond, the sentencing Judge ordered that he serve 19 months and 24 days in prison cumulatively on the sentences already imposed. As discussed later, it was common ground that the bond at one part inaccurately recorded the sentence and the sentence revoked by the Judge was incorrect; it should have been 16 months and 13 days imprisonment.
The appellant has other prior convictions. Relevantly, on 2 September 2010, he was convicted of the offence of basic assault and fined $500, and on 27 November 2013, he was convicted of the offence of aggravated assault and placed on a good behaviour bond for 12 months. He also has prior convictions for driving offences and failing to comply with bail agreements.
Personal circumstances
At the time of sentencing, the appellant was 32 years of age. He is an Indigenous man and was born in Port Lincoln. He relocated to Adelaide when he was about 26 years old. His mother is a Naji Mirning woman and is of The Stolen Generation. His father was a Yamatji man from Geraldton, Western Australia. Together he and the victim have a son, ‘A’, who is now four years old.
The appellant grew up in a stable home environment. He has two older brothers with whom he has a close relationship. The appellant’s parents separated when he was about 22 years old. At that time, the appellant was still living at home. He developed a strong relationship with his mother after the breakdown of her relationship with his father and he remains close to her.
Whilst in primary school, the appellant was diagnosed with attention deficit hyperactivity disorder (‘ADHD’) for which he was prescribed dexamphetamine. When he was 16 years old, the appellant stopped taking his medication because of the side effects he was experiencing. He did so without the support of his parents, supervising general practitioner, or teachers. The appellant was subsequently expelled from school in year 11 due to his problematic behaviour.
After leaving school, the appellant began drinking excessively and taking illicit drugs. In 2014, when the appellant was around 24 years old, he started using methamphetamine, which soon developed into an addiction. He developed debilitating anxiety and began to experience panic attacks and suicidal ideations. He became heavily dependent on Valium as a result. As his addiction to drugs and alcohol worsened, he began to offend to fund his drug habit.
At around the age of 26, the appellant moved to Adelaide from Port Lincoln and met KPS. The appellant and KPS have been in an ‘on and off’ relationship since early 2016. Their son, A, was born in October 2018. Sometime after 27 September 2019, he and KPS separated.
In 2021, the appellant’s father died. At this time the appellant was in custody and was unable to attend the funeral, which was held in Western Australia. Nor was he able to partake in the traditional burial ceremony.
On 30 March 2022, a sentencing conference was held pursuant to s 22 of the Sentencing Act (‘the sentencing conference’). During that conference, the victim read out a statement and the appellant’s brother, RTD, spoke of the pain and suffering the appellant’s offending had caused his family. Other relatives of the appellant and people close to the victim also spoke at the sentencing conference. When the appellant spoke, he said he had ‘learnt some important lessons’ and that his actions ‘do affect the other people in [his] life’. He expressed a desire to ‘right all of [his] wrongs’ and apologised to those in attendance for his poor behaviour.
At the sentencing conference, the appellant also apologised to the victim and spoke frankly about his battle with drug and alcohol addiction. He said he now recognises the impact his actions had, and continue to have, on those around him. The appellant said he is now sober, and has sought support from relevant therapeutic services to aid his rehabilitation.
In a letter dated 20 April 2022, a clinical psychologist, Mr Matt Pedler, confirmed the appellant’s attendance at counselling (via telephone). Mr Pedler said that the appellant engaged openly in his session, and further arrangements had been made for regular telephone appointments while the appellant remains in custody. He will transition to community-based appointments upon his release.
The sentencing remarks
The sentencing Judge outlined the appellant’s offending and his personal circumstances in similar terms to the above. His Honour referred to the sentencing conference and the appellant’s apology made during that conference.
When turning to sentence, his Honour explained that the primary purpose of sentencing is to ‘protect the safety of the community, including individuals and in general.’ His Honour expressed concern that the appellant had continued to harass the victim whilst he was in custody and whilst subject to an intervention order. He also emphasised the adverse impact of the appellant’s offending on the victim and their son, who was exposed to a ‘violent, aggressive and unsafe home environment.’
In relation to the appellant’s prospects of rehabilitation, the sentencing Judge said:
As much as possible, it is also necessary for me to formulate a sentence which promotes your rehabilitation. Your counsel made submissions that you have never been removed from an environment that supports the use of drugs. She stated that losing your father whilst in custody and having been in custody for an extended period already has forced you to stay sober, be removed from an environment where drugs are rife and available and realise what you have taken for granted in your life. It has been a wake-up call, as you put it.
His Honour had regard to the appellant’s recent efforts at rehabilitation including his attempt to enter the Suboxone program whilst in custody, counselling, and his request whilst in custody to engage in further grief counselling. The sentencing Judge accepted that the death of the appellant’s father had a significant impact on him.
The sentencing Judge imposed the sentence referred to earlier and a fresh intervention order.
Manifest excess
The appellant complains that the accumulated head sentence is manifestly excessive. The principles governing a complaint of manifest excess are well‑established.[1] The Court must be satisfied that the sentence imposed by the sentencing Judge was ‘unreasonable or plainly unjust’;[2] that is, ‘outside the permissible range of sentences for the offender and the offence.’[3]
[1] R v Morse (1979) 23 SASR 98 at 99 per King CJ (with whom White and Mohr JJ agreed); Dinsdale v The Queen (2000) 202 CLR 321 at [6] per Gleeson CJ and Hayne J; Hili v The Queen (2010) 242 CLR 520 at [59]-[60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Ndreka v The Queen [2021] SASCA 11 at [28] per Doyle JA.
[2] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
[3] Kentwell v The Queen (2014) 252 CLR 601 at [35] per French CJ, Hayne, Bell and Keane JJ. See also Hili v The Queen (2010) 242 CLR 520 at [60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
To demonstrate an error of manifest excess, it is not sufficient for the Court to merely conclude that it would have come to an alternative decision from that reached by the sentencing Judge, or that the sentence imposed is markedly different from the sentences imposed in other cases.[4] As the High Court explained in Hili v The Queen:[5]
[4] Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[5] (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.
(citations omitted)
In assessing whether a sentence is manifestly excessive, it is necessary to consider all matters relevant to the determination of a sentence, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. Ultimately, however, manifest excess or inadequacy is a conclusion and may not permit of ‘lengthy exposition’.[6]
[6] Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In applying this approach, it needs to be borne in mind that there is no single correct sentence, and sentencing judges should be allowed ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’.[7]
[7] Markarian v The Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ citing Johnson v The Queen (2004) 78 ALJR 616 at [5] per Gleeson CJ, [26] per Gummow, Callinan and Heydon JJ.
In the present case, the sentencing Judge was provided with the wrong maximum penalty and the incorrect sentencing discount to be applied on account of the appellant’s guilty pleas in relation to the nine counts of contravening an intervention order. The maximum discount applied by the sentencing Judge was lower than the maximum discount that ought to have been applied. The sentencing Judge applied a discount of five per cent when the appellant was in fact entitled to a 30 per cent discount. However, his Honour ultimately convicted the appellant of those offences but imposed no further penalty. Whilst it is to be accepted that these were ‘process errors’ of the type identified in House v The King,[8] the appellant quite properly concedes that those errors of themselves did not justify this Court’s intervention, nor render the sentence manifestly excessive.[9]
[8] (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ.
[9] R v Horstmann [2010] SASC 103 at [38] per Kourakis J.
The appellant does not contend that the sentences imposed for each of the individual counts was outside the permissible range. Rather, the appellant submits that the accumulated head sentence (with no order for concurrency or partial concurrency between the individual sentences) was manifestly excessive.
In considering that contention, regard must be had to the nature and seriousness of the crimes committed, being offences of physical and domestic violence against the appellant’s former partner. Further, his violent offending was not isolated to one incident, but rather, occurred on three separate occasions between 12 October and 2 November 2019, in the victim’s home and, on occasion, in the presence of their young child.
It is also significant that the appellant committed the offending whilst subject to a suspended sentence bond, albeit for different types of offending. He did not fall to be sentenced as a first time offender as he has prior convictions for the offences of property damage and assault, as well as other offences in breach of court orders. Further, after being arrested and remanded in custody, the appellant continued to offend by contacting the victim (at first with the assistance of his mother and then under a false name) and pressuring the victim to withdraw the charges. Thus, principles of specific deterrence needed to be emphasised in the sentence given the persistent nature of the appellant’s offending, and that it occurred in breach of various court orders, namely a suspended sentence and an intervention order. Those matters underscore the gravity of the appellant’s offending when considered in its entirety.
The roles of both general and personal deterrence in sentencing for offences of domestic violence were discussed by Nicholson J in R v Nedza.[10] His Honour said:[11]
[10] [2013] SASCFC 142.
[11] R v Nedza [2013] SASCFC 142 at [87] per Nicholson J cited in R v Mark [2019] SASCFC 48 at [26] per Stanley J.
[W]here offending of this nature occurs in the context of domestic violence, both personal and general deterrence must play a significant role in the sentencing process. Domestic violence is all too frequent in our society and so often occurs in secret or goes unreported. Where the authorities do become aware of domestic violence it must be met with condign punishment. It also is important that the opportunity be taken to bring home to others who might be like minded that the courts will not tolerate domestic violence, particularly where, as is typical, it is meted out to physically weaker or defenceless children and women.
Those remarks are apposite in the present case.
Principles of general and personal deterrence, and the primacy to be afforded to the safety of the protection of the community, including the victim, weighed heavily in this matter. Notwithstanding the rehabilitative efforts undertaken by the appellant, and the fact he had demonstrated insight into his offending, and progressed with his rehabilitation, the offending called for a significant sentence.
Partial or complete concurrency
Aligned with the complaint of manifest excess (and the subject of separate grounds of appeal), the appellant contends that the sentencing Judge’s failure to order that any of the individual sentences be served wholly or partially concurrently was not only a process error, but also resulted in an accumulated head sentence that was not proportionate to the totality of the offending and was therefore manifestly excessive.
The appellant submits that the sentencing Judge erred in not ordering that the individual sentences for each offence be served concurrently as the offending constituted a single course of conduct. This argument is submitted on the basis that each offence was similar in nature and committed against the same victim within a four-month period. In the alternative, the appellant contends that the offences committed on 24 October 2019 (Counts 3 and 4) on the one hand, and the offences committed on 2 November 2019 (Counts 10, 11 and 12) on the other hand, each constituted a single course of conduct and called for at least partial concurrency. The appellant contends that having made no order for concurrency, nor any reduction on account of totality, the accumulated sentence imposed was disproportionately high to the offending given his personal circumstances and was therefore manifestly excessive.
In Attorney-General (SA) v Tichy,[12] Wells J outlined the relevant and competing considerations for a sentencing judge in determining whether sentences should be ordered to be served concurrently or cumulatively:[13]
[12] (1982) 30 SASR 84.
[13] Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93 per Wells J.
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
In R v Copeland (No 2),[14] Kourakis J (as he then was) identified the reasons why an order for concurrency may still be appropriate for offences which do not involve a single course of conduct but rather are made up of ‘similar and proximate offences committed in furtherance of a single criminal plan’.[15] His Honour said:[16]
[14] (2010) 108 SASR 398.
[15] R v Copeland (No 2) (2010) 108 SASR 398 at [102] per Kourakis J.
[16] R v Copeland (No 2) (2010) 108 SASR 398 at [105]-[106] per Kourakis J.
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms. In Jarvis v The Queen Ipp J explained this consideration in the following way:
“What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply, because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.”
(emphasis added)
Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.
Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.
There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any to which the sentences imposed for them should be concurrent. I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single course, or a number of courses, of conduct. Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.
(citations omitted)
The appellant also relied on the authorities of R v Standley[17] and R v Cassidy[18] (‘Cassidy’), in support of his contention that the sentencing Judge’s failure to order that the individual sentences be served wholly, or at least partially, concurrently was a process error and/or resulted in a sentence that was disproportionate to the offending. In Cassidy, Kourakis CJ considered there to be several factors that militate against a linear arithmetic accumulation of sentences.[19]
[17] [2016] SASCFC 141.
[18] [2017] SASCFC 134.
[19] R v Cassidy [2017] SASCFC 134 at [23]-[24] per Kourakis CJ citing R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[107] per Kourakis J.
As to what those specific factors are, his Honour said:[20]
[20] R v Cassidy [2016] SASCFC 141 at [23] per Kourakis CJ.
There are necessarily limits to the extent to which sentences can be imposed cumulatively. First, as penalties are accumulated the requirement for personal deterrence, and the weight attached to it, is relatively reduced and the relative severity of the punishment increased by the circumstance that an offender only commences to serve each cumulative term after first serving each preceding term is served and after long periods of earlier imprisonment.
His Honour explained the necessary limits on the extent to which sentences can be imposed cumulatively by reference to his reasoning in R v Copeland (No 2), which has already been set out above, and said:[21]
[21] R v Cassidy [2016] SASCFC 141 at [24]-[25] per Kourakis CJ.
The abovementioned considerations militate against a linear arithmetic accumulation of sentences. Instead as more sentences are imposed they will have a relatively smaller effect on the total head sentence and will follow what might be described as a logarithmic function.
There is a further limit on a linear accumulation. For offences falling in the lower end of the criminal calendar which individually would not warrant long sentences, it is possible and desirable to take a graduated approach to personal deterrence. Sentences of imprisonment may be increased incrementally having regard to the length of sentences previously imposed. Of course, ultimately, if an offender persists in recidivistic offending, the total head sentence for multiple offending may be as severe as sentences imposed for much more serious offences.
The operation of the principles of concurrency have also been considered in recent decisions of this Court.[22]
[22] See for example Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; White (A Pseudonym) v The Queen [2022] SASCA 78.
It is important to emphasise that there are no ‘hard and fast rules’ as to whether sentences should be ordered to be served either wholly or partially concurrently.[23] Flexibility must be afforded to sentencing judges in ensuring proportionality; that is, the aggregate sentence is ‘just and appropriate to the totality of the appellant’s offending behaviour.’[24] This may be done by various sentencing mechanisms. For example, a proportionate sentence may be achieved by ordering concurrency between individual sentences, or by moderating latter individual sentences in acknowledgment that earlier sentences have already done much to achieve sentencing objectives, or by a final reduction for totality whereby the accumulated sentence is adjusted for proportionality, or by utilising s 26 of the Sentencing Act.
[23] R v Copeland (No 2) (2010) 108 SASR 398 at [106] per Kourakis J.
[24] Nguyen v R (2016) 256 CLR 656 at [37] per Bell and Keane JJ citing Mill v The Queen (1988) 166 CLR 59 at 62-3 per Wilson, Deane, Dawson, Toohey and Gaudron JJ.
With those principles in mind, we turn to consider the appellant’s complaints as to the length of the head sentence. It is important to note that his offending occurred on three separate occasions. The first occasion occurred on the 12 October 2019, the second on 24 October 2019 and the third on 2 November 2019. On the first occasion, the appellant punched and broke the bedroom door (Count 2). On the second occasion, the appellant used two different items to assault KPS twice: first with a half-full drink 1.25 litre plastic drink bottle (Count 3), and then with the base of a pot plant (Count 4). On the third occasion, the appellant assaulted KPS three times: first, he jammed his fingers into her throat (Count 10); second, he fractured her finger by squeezing her hand with force (Count 11); and third, he put a knife against her hand while threatening ‘I will fucking end you, I will finish you for good. If the police come here, look out dog.’ (Count 12).
There is a clear demarcation in time of at least one week between each of the three occasions on which the offences were committed. The appellant had sufficient time to reflect on his conduct between each incident. There was also an escalation in the level of violence inflicted on the victim from the first occasion to the final occasion. In relation to the second occasion on 24 October 2019, when Counts 3 and 4 were committed, it appears the sentencing Judge imposed one penalty of 12 months for both offences, and in that way addressed the issue of proportionality. As to the final occasion on 2 November 2019, when Counts 10, 11 and 12 were committed, while it was open to the sentencing Judge to order the sentences for those offences be served concurrently bearing in mind that they all occurred with relatively quick succession, it cannot be said that it was an error in deciding not to do so. Each offence constituted a separate and serious assault on the victim, the last of which involved a knife. Each offence involved a different mechanism of force. There was also some time (albeit, brief) between assaults during which the appellant had an opportunity to pause, reflect and desist from his unlawful conduct.
We are satisfied there was no process error by the sentencing Judge in not ordering that the individual sentences be served wholly concurrently, or, in relation to the offences committed on 2 November 2019, partially concurrently.
The question remains whether the final head sentence imposed was manifestly excessive. For the reasons outlined earlier, the offending, looked at in its entirety, was a serious example of sustained domestic violence. The appellant did not come before the Court as a first offender; he had prior convictions for various offences and was subject to a suspended sentence bond at the time of the offending. He also committed the latter offending in breach of an intervention order. His unlawful conduct in attempting to have the victim withdraw the charges whilst remanded in custody strikes against the core of the criminal justice system and was inherently serious. It is also to be noted that the sentencing Judge was lenient in relation to the individual sentence imposed for the nine offences of breaching an intervention order by simply convicting the appellant and imposing no further penalty.
The appellant expressed remorse and insight into his offending at the sentencing conference and, at that time, had made commendable efforts towards his rehabilitation. Notwithstanding those matters personal to the appellant, we do not consider the head sentence was disproportionate to the criminality of the appellant’s sustained and serious offending and his personal circumstances, including his rehabilitation. Condign punishment, and principles of both general and personal deterrence called for a significant penalty, and, whilst the head sentence was at the higher end of the permissible range, we do not consider it manifestly excessive.
We would dismiss Grounds 1, 3 and 4.
The non-parole period imposed is manifestly excessive
The appellant’s complaint in relation to the length of the non-parole period has two limbs. First, the appellant contends that the sentencing Judge was in error in not back dating the sentence from the date the appellant was taken into custody rather than reducing the sentence for time served in custody. Further, it is submitted that in adopting this approach, the sentencing Judge erred in reducing the head sentence for time served in custody and then fixing a non-parole period by reference to the head sentence, as opposed to imposing a head sentence and non‑parole period and then deducting time served from both. Second, the appellant contends that the non-parole period is manifestly excessive.
Section 44 of the Sentencing Act provides that if a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the Court may take into account time served and either ‘make an appropriate reduction in the term of the sentence’[25] or direct that the sentence be taken to have commenced on the day the defendant was taken into custody, or some intermediate date before the day the defendant was sentenced.[26]
[25] Sentencing Act 2017 (SA) s 44(2)(a).
[26] Sentencing Act 2017 (SA) s 44(2)(b).
It can be seen that s 44 provides the sentencing Judge with a discretion as to how credit on account of time served is to be given.
When time spent in custody is continuous from the date a defendant is taken into custody to the date of sentence (as it was in the present case) it is preferable to backdate the head sentence and non-parole period to the day on which the defendant was taken into custody rather than reduce the length of the sentence.[27] This is the better practice for several reasons. First, it promotes ‘accuracy and transparency of the record’ in that the length of the sentence and non-parole period is not distorted by any reduction for time served, and thereby avoids incorrect perceptions by the public or co-offenders as to sentences imposed by the courts. [28] It ensures the defendant prisoner, and all other interested parties ‘know the real sentence which has been imposed.’[29] As White J explained in R v Pahuja (No 2):[30]
[27] R v Deng [2015] SASCFC 176 at [12]-[14] per Blue J; R v Tsonis (2018) 131 SASR 416 at [70] per Lovell, Doyle and Hinton JJ.
[28] R v Deng [2015] SASCFC 176 at [13] per Blue J citing R v McHugh (1985) 1 NSWLR 588 at 590-591 per Street CJ (with whom Hunt and Enderby JJ agreed); R v Newman (2004) 145 A Crim R 361 at [27], [30] per Howie J (with whom McColl JA agreed); R v Tilley [2010] SASCFC 73 at [24] per Duggan J (with whom Anderson and Peek JJ agreed).
[29] Frank v Police (2000) 77 SASR 273 at [50] per Lander J.
[30] (1989) 50 SASR 551 at 563 per White J.
Artificial results are always placed on record where head sentences and non-parole periods are artificially reduced to take account of time spent in custody. The better practice, in my view, is to back-date the true sentences rather than artificially reduce sentences when giving credit for time spent in custody. Otherwise a false impression is created in the minds of the prisoner and the public about the length of the head sentence and figures get into the statistical record which distort the general standard of sentencing so-called tariffs.
Second, backdating the sentence has the effect of necessarily giving the defendant full credit on account of time served in custody. In that regard, Lander J in Frank v The Police said:[31]
[31] Frank v Police (2000) 77 SASR 273 at [50] per Lander J.
It guards against requiring a party to spend too long in prison before parole becomes available. If a court simply has regard to time spent in custody there is a real risk, when considering the non-parole period which must be set, that the court may overlook that the person to be sentenced has actually served the whole of the time for which account has been given.
The sentencing Judge gave the appellant credit on account of time served by making the appropriate reduction to the head sentence and then fixing the non‑parole period by reference to the head sentence. The appellant had been in custody continuously since his arrest. There was no impediment to backdating the head sentence and non-parole period to the date he was taken into custody. For the reasons just outlined, backdating the sentence would have been the preferable course. However, the decision to account for time served by reducing the sentence for time spent in custody did not of itself constitute an error. It was a mechanism that was provided for by s 44 of the Sentencing Act and it was open to the sentencing Judge to proceed in that manner.
However, in adopting this approach, the deduction for time served was diluted so far as the non-parole period is concerned. Only a proportion flowed through to the non-parole period. Whilst this approach is permissible, it inevitably results in lesser credit being given for time served, and this was a matter that must be borne in mind when setting the non‑parole period.[32] It may warrant a ‘somewhat different’ (that is, lower) non-parole period as a proportion of the head sentence.[33]
[32] R v Malesevic (1999) 204 LSJS 32 at 35-6 per Doyle CJ.
[33] R v Malesevic (1999) 204 LSJS 32 at 36 per Doyle CJ.
As this Court said in Ribbon v The Queen:[34]
[34] [2022] SASCA 15 at [34] per Livesey P, Doyle and David JJA.
Courts have in recent times emphasised that in situations where it is not possible to backdate a sentence and the sentencing Judge reduces the sentence for time served, it is generally preferrable to fix a head sentence and non-parole period and then reduce both for time spent in custody.[35] This approach allows for an explicit reduction from both the head sentence and non-parole period for time served by an exact period, which better reflects that a person has actually spent that time in custody. It also allows for transparency in the sentencing process so there can be no sense of grievance by a defendant that the time served has not properly been accounted for in the non-parole period.
[35] R v Hudson (2016) 125 SASR 171 at [26] per Nicholson J (with whom Parker and Lovell JJ agreed); R v Tsonis (2018) 131 SASR 416 at [71] per Lovell, Doyle and Hinton JJ.
The appellant had been continuously remanded in custody since his arrest on 29 November 2019. As of the date of sentence, he had served two years, four months and 25 days in custody; a significant period.
In considering whether the sentencing Judge had regard to time served when fixing the non-parole period, it is to be accepted that he did not make express reference to it. Rather, in imposing sentence, the sentencing Judge proceeded by setting out the individual sentences for each offence, revoking the suspended sentence bond and ordering that the revoked suspended sentence be served cumulatively on the individual sentences. That resulted in a nominal head sentence of four years, nine months and 28 days. His Honour then reduced that sentence on account of time served in custody (two years, four months and 25 days) resulting in a head sentence of two years, five months, and three days imprisonment. The sentencing Judge then fixed a non-parole period of one year, 11 months and nine days. Before setting the non-parole period, the sentencing Judge made no further reference to the time served in custody. However, given the sentencing Judge fixed the non-parole period almost immediately after referring to the time served (albeit, in the context of imposing the head sentence), and not withstanding that the non‑parole period was almost 80 per cent of the head sentence, we are not satisfied that his Honour overlooked the time served by the appellant.
In relation to the second limb of this ground of appeal, the appellant contends that the non-parole period was manifestly excessive. As set out earlier, the non‑parole period equates to approximately 80 per cent of the head sentence (after reduction for time served.) However, if one were to start with the notional head sentence and add the time served to the non-parole period, it becomes apparent that the effective non-parole period is almost 89 per cent of the head sentence. Further, the accumulated sentence was ordered to be served cumulatively on the revoked suspended sentence. That revoked sentence had also been reduced for time served (earlier and not continuously) in custody. Bearing that in mind, the ultimate non‑parole period was in fact higher again.
It is accepted by the respondent that the sentencing Judge revoked the incorrect suspended sentence, that is 19 months and 24 days rather than 16 months and 13 days; and that an adjustment should be made to the non-parole period to reflect the appropriate discount and correct length of the revoked period of imprisonment. However, the respondent submits that the non-parole period properly reflects the appellant’s guarded prospects of rehabilitation given he committed the offending whilst subject to a suspended sentence bond and, in relation to the latter offences, in breach of an intervention order.
In determining whether a non-parole period is manifestly excessive, it is necessary to recognise that the function of a non-parole period is different to that of a head-sentence; a defendant’s rehabilitative prospects should be given greater emphasis when fixing a non-parole period than when imposing a head sentence.[36] While a non-parole period should operate as a personal deterrent and be properly proportionate to the gravity of the offending, it is appropriate to give greater weight to a defendant’s rehabilitative prospects at that point of the sentence.[37]
[36] Bugmy v The Queen (1990) 169 CLR 525 at 531 per Mason CJ and McHugh J; R v Moyle (1996) 186 LSJS 462 at 465 per Doyle CJ; R v Abdulla (2011) 109 SASR 258 at [52] per Vanstone J (with whom White J agreed) citing R v Shrestha (1991) 173 CLR 48 at 68-9 per Deane, Dawson and Toohey JJ; R v Curry [2016] SASCFC 16 at [38] per Stanley J; R v Palmer [2016] SASCFC 34 at [26] per Kourakis CJ.
[37] R v Shrestha (1991) 173 CLR 48 at 68-69 per Dean, Dawson and Toohey JJ; R v Miller (2000) 76 SASR 151 at 160 per Doyle CJ; R v Curry [2016] SASCFC 16 at [38] per Stanley J.
In Bugmy v The Queen,[38] Mason CJ and McHugh J observed:[39]
[38] (1990) 169 CLR 525.
[39] Bugmy v The Queen (1990) 169 CLR 525 at 532 per Mason CJ and McHugh J.
A prisoner’s prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members.
…
Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.
In circumstances where there is no mandated non-parole period, there is not a ‘standard’ or ‘normal’ non-parole period.[40] However, to reflect the punitive and protective purposes of punishment, non-parole periods are generally fixed between 50 and 75 per cent of the head sentence.[41] This is not a definitive range.[42] Speaking generally, where a judge fixes a non-parole period towards or beyond either end of this indicative range, some explanation for doing so should be set out in the sentencing remarks.
[40] R v Palmer [2016] SASCFC 34 at [4] per Kourakis CJ; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11 at [45]-[47] per Livesey P, Doyle and David JJA.
[41] R v MacGowan [2012] SASCFC 138 at [20] per Kourakis CJ; R v Palmer [2016] SASCFC 34 at [4] per Kourakis CJ; R v McIntyre (2020) 138 SASR 17 at [84] per Doyle J (with whom Stanley and Hughes JJ agreed); Day v The Queen [2021] SASCA 38 at [66] per Kelly P, Lovell and Livesey JJA; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11 at [45] per Livesey P, Doyle and David JJA.
[42] R v MacGowan [2012] SASCFC 138 at [20]-[21] per Kourakis CJ; R v Palmer [2016] SASCFC 34 at [23]-[28] per Kourakis J; R v Devries [2018] SASCFC 101 at [18] per Hinton J; R v Parsons [2019] SASCFC 43 at [28] per Bampton J.
In this matter, the appellant has made progress in his rehabilitation. He has made attempts to engage in a drug rehabilitation program, being the Suboxone program, and he has been referred to the Aboriginal Drug and Alcohol Counselling Unit in Port Augusta. Upon his release, there will be community support in place to assist with his mental health and drug addiction. Since being remanded in custody, he has abstained from drugs use, and engaged the support of a clinical psychologist.
During the sentencing conference, the appellant expressed contrition for his offending and displayed some insight into the adverse impact of his drug addiction and offending on the victim and others. As noted above, he has the support of his broader family and is still a relatively young man. Notwithstanding his antecedents and the fact his offending was committed in breach of two court orders, there were some prospects of rehabilitation which needed to be properly reflected in the non‑parole period.
The appellant had also served considerable time in custody which was not directly deducted from his non-parole period. Nor was the time served in custody in relation to the offences for which he was placed on a suspended sentence bond taken into account.
In all the circumstances, we consider that the non-parole period of almost 80 percent of the head sentence was outside the permissible range and manifestly excessive.
We would allow the appeal on this ground.
The enforcement of the bond and revocation of the suspended sentence
The appellant contends that the suspended sentence bond was invalid and unenforceable, and thus the sentencing Judge erred in ordering the revocation of the suspended sentence.
On 6 August 2019, a Magistrate sentenced the appellant to 16 months and 13 days imprisonment with a non-parole period of three months imprisonment which was suspended on a two-year good behaviour bond with conditions.
By way of background, the Magistrate’s sentencing remarks outlined that the appellant was sentenced for 11 offences of dishonesty committed from 10 July 2017 to 16 October 2018. The Magistrate imposed one penalty of 33 months imprisonment. That was reduced by 40 per cent on account of his guilty pleas to 19 months and 24 days imprisonment. At the same time, the Magistrate also sentenced the appellant for other offences committed from 14 July 2017 to 14 January 2019. A single penalty of nine months and 14 days imprisonment was imposed, which was reduced by 30 per cent on account of his guilty pleas to six months and 19 days imprisonment. That sentence was ordered to be served cumulatively on the earlier sentence resulting in a head sentence of 26 months and 13 days imprisonment. A non-parole period of 13 months was fixed.
The head sentence and non-parole period were both reduced by ten months on account of time served in custody and on home detention. Accordingly, the Magistrate imposed a head sentence of 16 months and 13 days imprisonment with a non-parole period of three months, which was suspended upon the appellant entering a two-year good behaviour bond with conditions.
The suspended bond signed by the appellant provided as follows:[43]
[43] Suspended Sentence Bond in relation to AMC-19-6816 signed 19 August 2019 at page 2.
Details of the Sentences that the Court has imposed
1-13 Attempted Deceive Another to Benefit Self—Basic Offence (2)/Deceive Another to Benefit Self—Basic Offence (2)/Dishonest Dealings with Documents—Basic Offence (3)/Use Another’s Identification Inform
IMPRISONMENT – For 19 MONTHS 24 DAYS
14-23 Drive Dangerously To Escape Police Pursuit –Aggravated (MCPAD-17-4073 Ct 2)/Resist Police (MCPAD-17-4073 Ct 6)/Hinder Police (AMC-18-4785 Ct 1)/Carry An Offensive Weapon (AMC-18-4785 Ct 2)/Unlawful Pos
IMPRISONMENT – For 6 MONTHS 19 DAYS Cumulative upon sentence imposed on counts 1-13
TOTAL HEAD SENTENCE OF 26 MONTHS, 13 DAYS REDUCED TO 16 MONTHS, 13 DAYS. NON-PAROL INITIALLY OF 13 MONTHS IS REDUCED TO 3 MONTHS
Total sentence of 19 MONTHS 24 DAYS
imprisonment to be servedNon-parole period fixed 3 MONTHS
The court has recorded a conviction against you for the offence listed above and has imposed the sentence shown for each matter. It is, however, ordered that the sentences be suspended if you enter into a bond.
Details of Your Bond are –
Length of Bond Term 2 YEARS (starting from when you sign this bond/when you are released from prison)
Amount of Bond $50.00
Under the heading ‘Details of the Sentences that the Court has Imposed’, the sentences are accurately recorded. It is under the heading ‘Total sentence of imprisonment to be served’ that the bond inaccurately records the head sentence as 19 months and 24 days, that being the sentence for the 11 dishonesty offences (after being reduced on account of his guilty pleas) rather than the accumulated head sentence for all offences of 16 months and 13 days (after being reduced for time served in custody and on home detention.) To that extent, there is an error in the bond.
On the appeal hearing, this Court obtained a copy of the Certificate of Record. The record states:[44]
[44] Certificate of Record in relation to AMC-19-6816 dated 18 October 2022 at page 4.
Court Order IMPRISONMENT – For 6 MONTHS 19 DAYS Cumulative upon sentence imposed on counts 1-13 TOTAL HEAD SENTENCE OF 26 MONTHS, 13 DAYS REDUCED TO 16 MONTHS, 13 DAYS
NON-PAROLE INITIALLY OF 13 MONTHS IS REDUCED TO 3 MONTHSCourt Order remarks FTR PAD6 – IMPRISONMENT – For 19 MONTHS 24 DAYS
Whilst the Certificate of Record is accurate as to the sentence ordered by the Magistrate, it is misleading in that next to the heading ‘remarks’ it subsequently refers to imprisonment for 19 months 24 days. As outlined above, that sentence was subsumed in the earlier sentence noted under the earlier heading of ‘Court Order.’
The appellant contends that the suspended sentence bond contains a ‘fundamental error’ as it incorrectly states the head sentence. The appellant submits that the error ‘goes to the heart of the conditions of the bond’, and for that reason, the bond is void and unenforceable and the sentencing Judge erred in revoking the suspended sentence.
For the respondent, it is accepted that the suspended sentence bond erroneously referred to the incorrect period of imprisonment under the ‘Total sentence of imprisonment to be served.’ However, the respondent submits the appellant was aware that he had been sentenced to imprisonment for 16 months and 13 days with a non-parole period of three months, and the consequences of any breach of the bond, because it was announced in open court.[45]
[45] Nollen v Police (2001) 78 SASR 421 at [51]-[52] per Gray J.
The respondent accepts that, when revoking the suspended sentence, the sentencing Judge ordered the appellant serve the incorrect sentence. However, the respondent submits that error is a technical one and the sentence can be rectified using s 20 of the Sentencing Act.
A bond is a contractual agreement between the appellant and the Crown which stipulates the consequences for a breach of its terms.[46] Accordingly, a bond can be void or voidable for reasons similar to that of a contract.[47]
[46] Fischer v Chambers (1972) 4 SASR 105 at 111 per Bray CJ; Hebberman v Police [2010] SASC 98 at [27] per Gray J.
[47] Fischer v Chambers (1972) 4 SASR 105 at 111 per Bray CJ.
In Mann v Yannacos[48] (‘Yannacos’) Bray CJ said:[49]
[48] (1977) 16 SASR 54.
[49] Mann v Yannacos (1977) 16 SASR 54 at 63-4 per Bray CJ.
When the condition of a bond is entire and any part of it is unlawful or void, the bond is entirely void, but where there are separate and independent conditions the bond will remain valid for such of the conditions as are good … in any event I think that if a bond is entered into under the compulsion of an order of the Court, backed by the sanction of imprisonment on refusal, it ought not to stand if it does not comply with the order of the Court.
(citations omitted)
In Chatterton v Police (SA),[50] Parker J considered Yannacos as authority for the principle that the inclusion in a bond of an obligation that has not been imposed by the sentencing court will invalidate a bond, and that this extends to the misstatement of the rights held by a party to a bond.[51] Further, Parker J considered the decision in Yannacos to provide a good example of the strictness with which the courts view the terms of a bond must be specified.[52]
[50] (2020) 136 SASR 431.
[51] Chatterton v Police (SA) (2020) 136 SASR 431 at [72] per Parker J.
[52] Chatterton v Police (SA) (2020) 136 SASR 431 at [72] per Parker J; see also Director of Public Prosecutions (Cth) v Cole (2005) 91 SASR 480 at [48] per Gray, Sulan and Layton JJ.
In R v Greengrass,[53] the Court considered whether a bond which contained a condition that had not been referred to by the sentencing Magistrate in his sentencing remarks was invalid and unenforceable. The Court allowed the bond to stand but severed the impugned condition from the bond.[54]
[53] (2009) 104 SASR 262.
[54] R v Greengrass (2009) 104 SASR 262 at [40]-[41] per Sulan and Layton JJ.
In Nollen v Police,[55] the appellant contended that a failure to specify the non‑parole period in the bond resulted in it being defective. Justice Gray considered that where there is no evidence to suggest an appellant is unaware of the terms of a sentence or non-parole period, the fact that they are not informed of the non-parole period in writing does not, of itself, render the bond unenforceable.[56]
[55] (2001) 78 SASR 421.
[56] Nollen v Police (2001) 78 SASR 421 at [41] per Gray J; Chatterton v Police (SA) (2020) 136 SASR 431 at [61] per Parker J.
In the present case, the suspended sentence bond when read as a whole makes clear that the head sentence imposed is 16 months and 13 days. Under the heading ‘Details of the Sentences that the Court has Imposed’ the document accurately records the accumulated head sentence and non-parole period for each of the two sets of offending, and the accumulated sentence to be served. It also records the reduction of that accumulated sentence on account of time served. That being so, the reference to 19 months and 24 days under the heading ‘Total sentence of imprisonment to be served’ is to be construed as a typographical error that does not detract from the terms or meaning of the bond.
Further, there is no suggestion that the appellant was unaware that the sentence imposed was 16 months and 13 days with a non-parole period of three months. The correct sentence was announced in open court, as were the consequences of breaching the bond, namely that he may be called upon to serve at least three months imprisonment. This is not a case where the appellant entered a bond on terms not expressed by the sentencing Magistrate. Nor is it a case where an additional condition or requirement was included in the bond but not expressed during sentencing by the Magistrate, or which went beyond the terms of the bond imposed by the sentencing Magistrate.[57]
[57] R v Greengrass (2009) 104 SASR 262 at [39] per Sulan and Layton JJ; Chatterton v Police (2020) 136 SASR 431 at [72], [75] per Parker J.
We are satisfied the suspended sentence bond was not invalid or unenforceable and the sentencing Judge was not in error in revoking it.
As we have allowed Ground 2 of the appeal, and the appellant is to be re‑sentenced by this Court, it is not necessary to consider whether s 20 of the Sentencing Act can be utilised to correct the error of the sentencing Judge in revoking a suspended sentence that was incorrect.
Re-sentence
For the individual offences charged on the District Court Information, we would adopt the same head sentences (reduced on account of the appellant’s guilty pleas) as the sentencing Judge. We would also order that each sentence be served cumulatively except in relation to Counts 10, 11 and 12 for which we would order partial concurrency of two months on account of the fact they were committed during the same incident in relatively quick succession. This results in a head sentence of three years, and four days.
In relation to the Magistrates Court Informations, and the nine offences of contravening an intervention order, given the substantial term of imprisonment already notionally imposed, we would order a conviction on each count and impose no further penalty.
We would revoke the suspended sentence of 16 months and 13 days imprisonment and order it be served cumulatively on the earlier sentence resulting in a head sentence of four years, four months, and 17 days.
Bearing in mind the appellant’s personal circumstances, including his efforts and progress towards rehabilitation, and the time already served in relation to the revoked suspended sentence bond, we would impose a non-parole period of three years and one month; that is about 70 per cent of the head sentence. We would backdate both the head sentence and non-parole period to commence on 29 November 2019, being the date the appellant was first taken into custody. We would impose a fresh intervention order in the same terms as presently in place.
Orders:
1. Permission to appeal is granted on Grounds 1, 2 and 5.
2. The appeal is allowed on Ground 2.
3. The sentence is set aside.
4.The appellant is re-sentenced to a head sentence of four years, four months, and 17 days. A non-parole period of three years and one month is fixed. The head sentence and non-parole period are to commence on 29 November 2019.
5.An intervention order is imposed in the same terms as presently in place.
8
51
1