Warne v The Queen - [2020] SASCFC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
WARNE v THE QUEEN
[2020] SASCFC 124
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Hughes)
21 December 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING FOLLOWING RETRIAL OR REMITTAL
The appellant was found guilty of one count of basic assault, two counts of aggravated assault causing harm, one count of possession of a class A firearm without a licence, one count of aggravated threatening life, and three counts of aggravated assault on 1 April 2019. He was sentenced to four years and five months imprisonment with a non-parole period of three years on 26 September 2019.
The appellant appealed against these convictions. The Court of Criminal Appeal allowed the appeal against conviction in respect of one count of aggravated assault causing harm and ordered that the appellant be re-tried for this count. The Director of Public Prosecutions did not proceed with a re-trial of that count.
Since the Judge who had imposed the initial sentence had since retired, the re-sentencing process fell to a different Judge. The re-sentencing Judge approached the sentencing task afresh. The appellant was sentenced to a higher sentence of four years and nine months imprisonment with a non-parole period of three years and four months.
The appellant appealed against the re-sentencing Judge’s sentence on the following grounds:
1. That it was an error to impose a head sentence and a non-parole period that was greater than that which had been imposed prior to the appellant’s successful appeal;
2. That the sentencing Judge’s starting point was too great;
3. That the sentencing Judge erred in finding that home detention was not appropriate in all the circumstances; and
4. That the sentence is manifestly excessive.
Permission to appeal was granted by a single Judge of this Court in respect of grounds 1-2 and 4. The appellant pursued all four grounds before the Criminal Court of Appeal however he ultimately did not press ground 3.
The appellant submitted that the re-sentencing Judge should have had regard to, and not exceeded, the sentence of the original sentencing Judge, and that good reason existed to impose a lower sentence, as the scope of offending under consideration had reduced.
The respondent submitted that the re-sentencing for this Court was not bound by the outcome of the previous sentence and that the appropriate approach would be to examine whether the sentence imposed by the re-sentencing Judge was justifiable. The respondent conceded that ordinarily reasons should be provided from departing from the original sentence however this was explicable given the submissions of defence counsel, and no error in the sentence had been demonstrated.
Held per Hughes J, with Peek and Stanley JJ agreeing, the appeal is allowed and the appellant re-sentenced on the following basis:
1. It may be inferred from the submissions made to the re-sentencing Judge and the content of the sentencing remarks, that the re-sentencing Judge overlooked the approach that was required to be taken as outlined in R v Baltensperger;
2. In re-sentencing, the Court must first have regard to the original sentence and only upon concluding that there is good reason to depart from it, sentence in a different manner. Where there is a departure from the original sentence, it would be appropriate to provide an explanation for it and in this case no such explanation was provided;
3. The original sentence was not manifestly excessive but in light of the reduced scope of offending on which the appellant is to be sentenced, a lesser sentence is appropriate;
4. After accounting for time in custody and home detention, the appellant is re-sentenced to 4 years’ imprisonment with a non-parole period of 2 years and 8 months.
Sentencing Act 2017 (SA) s 26, referred to.
R v Baltensperger (2006) 96 SASR 34; [2006] SASC 246; R v Saunders [2017] SASCFC 86; R v Bechara (2014) 119 SASR 49; [2014] SASCFC 36, applied.
Warne v The Queen (2020) 135 SASR 431; [2020] SASCFC 12, discussed.
R v Garrett (1978) 18 SASR 308; R v Pahuja (No 2) (1989) 50 SASR 551; R v Gilmore (1979) 1 A Crim Rep 416; R v Bedford (1986) 5 NSWLR 711; R v Martin (No 6) (2000) 109 A Crim Rep 508; R v J, SM [2015] SASCFC 185, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"appeal against sentence", "sentencing after re-trial"

WARNE v THE QUEEN
[2020] SASCFC 124
Court of Criminal Appeal: Peek, Stanley and Hughes JJ

PEEK J: I agree with Hughes J.
STANLEY J: I would allow the appeal. I agree with the orders proposed by Hughes J and with her Honour’s reasons.
HUGHES J:
Introduction
This is an appeal against sentence. The circumstances of this matter require consideration of the sentencing principles applicable upon a re-sentencing exercise undertaken by a different judicial officer following a successful appeal against conviction.
The appellant was convicted of eight charges on 1 April 2019 following a trial by jury. The offences occurred in connection with a domestic relationship between the appellant and his then-partner. The appellant was convicted of all charges as follows:
1Basic Assault[1]
2Aggravated assault causing harm
3Aggravated assault causing harm
4Possession of a Class A Firearm without a licence
5Aggravated Threatening Life
6Aggravated Assault
7Aggravated Assault
8Aggravated Assault
[1] The appellant was originally charged with aggravated assault but the circumstance of aggravation was not established.
The appellant and the complainant were in a relationship from mid-2015 until February 2017. In July or August 2016, they argued in the bedroom of the complainant’s home where the couple lived. During that argument, the appellant hit the complainant, causing her to fall to the ground, and ‘stomped’ on her head causing bruising to her jaw and neck. This conduct gave rise to count 1. In July 2016, an intervention order was imposed on the appellant to protect the complainant. This had the effect of the subsequent offending being characterised as aggravated.
Count 2 was described in the decision of the Court of Criminal Appeal arising from the appellant’s appeal against conviction, as follows:
The complainant’s evidence in relation to count 2 (aggravated assault causing harm) was that it occurred on or about 2 October 2016 at their Avenue Range address. The appellant was in the bedroom, lying on the bed. The complainant entered the room and was yelling at the appellant. She was angry because he had been ignoring her, and she was trying to get him to see that she had been treated wrongly. She was carrying an axe, and used it to smash a bedside table that was alongside the bed that the appellant was lying on. After she did this, the appellant got up off the bed, pinned the complainant to the ground and started punching her in the back and side of her head. He said something to the effect of “you fucking whore; I’m going to knock you out.” She said that the appellant hit her over and over again, turning her head into “mush”. The evidence included some photographs that the complainant took of the injuries she sustained, as well as some vision and sound of the event leading up to the commission of count 2 which the appellant captured on his telephone camera.[2]
[2] Warne v The Queen (2020) 135 SASR 431; [2020] SASCFC 12 at [13] (Doyle J, with Nicholson J and David AJ agreeing).
The Court of Criminal Appeal determined that the trial Judge ought to have left the defence of self-defence to the jury and directed the jury with respect to that defence. Having not done so, the Court of Criminal Appeal determined that the conviction in respect of count 2 should be set aside and that the appellant be re-tried in respect of that count. That ground of appeal was unsuccessful in respect of other counts and other grounds of appeal failed such that the convictions were upheld except in respect of count 2. In the end, the Director of Public Prosecutions determined not to proceed with a re-trial on count 2 alone.
Several months after the events giving rise to count 2, the couple were living at a different home. An argument on Christmas Day developed into a physical fight during which the appellant grabbed the complainant by the throat, stuck his fingers in her mouth and pulled her lip, and then dragged her into the bedroom by her arms and hair. He then pushed her onto the bed and smothered her and hit her multiple times with his fists. This conduct was addressed in count 3.
Counts 4-8 inclusive occurred over 2 days in February 2017. The victim decided to leave the relationship. The appellant had placed his car in such a position that it blocked the victim from leaving the property in her own car. The victim got into the appellant’s car and used that instead to leave the property. In the car on the passenger’s seat was a Remington .22 calibre rifle, which she decided to hide at her parents’ house. The victim’s sister handed the firearm into police the following day. Arising from these events, the appellant was convicted of count 4, possession of a firearm without a licence, which carried a maximum penalty of 4 years’ imprisonment.
The victim returned to the property the following day to retrieve her possessions. She was there threatened by the appellant as to the location of the Remington rifle, whilst he was pointing a .410 shotgun at her at close range. He said to her “if you don’t tell me where that gun is, I’ll blow your fucking head off and no one will miss you.”[3] This conduct led to the appellant being convicted of the offence of Aggravated Threatening Life for which the maximum penalty is 12 years’ imprisonment.
[3] Sentencing Remarks in R v Warne (DCCRM-17-947) dated 21 April 2020 at page 3 (Judge Deuter).
There followed on that day three occasions of aggravated assault, each of which attracted a maximum penalty of 3 years’ imprisonment. Count 6 entailed the appellant pushing and dragging the victim from the laundry to the lounge room following threatening her life, and then to the bedroom. The victim tried to create an escape route by throwing a chair at a window but the window did not break. Count 7 arose from the appellant then pushing the victim on to the bed and smothering her by sitting on her and pushing her face into the pillow. Thereafter the appellant jammed his fist into the victim’s mouth and when she bit him, he “whipped” her with a metal curtain rod whilst abusing her all the while. The assault with the curtain rod gave rise to count 8.
As indicated earlier, the feature of aggravation in relation to counts 2, 3, 5, 6, 7 and 8 was that each occurred whilst an intervention order was in place for the benefit of the victim.
The appellant appealed his convictions.
Before the conviction appeal was determined, the appellant was sentenced by a Judge of the District Court (“the first sentencing Judge”) on 26 September 2019. The appellant was sentenced to 4 years and 5 months imprisonment by way of head sentence. A non-parole period of 3 years was imposed.
The appellant appealed the sentence on the ground of manifest excess.
Before the appeal against sentence was heard, the appeal against conviction was determined. All of the convictions were upheld except that, as referred to earlier, the Court upheld the appeal in respect of count 2 and remitted that count for re-trial. The Director of Public Prosecutions entered a nolle prosequi in respect of count 2. The appeal against sentence was not proceeded with.
The first sentencing Judge retired. The re-sentencing process arising from the appeal against conviction fell to be undertaken by a different judge. Sentencing submissions were made on 6 April 2020. The Judge imposed a sentence of 4 years and 9 months’ imprisonment and imposed a non-parole period of 3 years and 4 months.
The decision of the sentencing Judge
The Judge described the events that have been set out above. Critical to the circumstances giving rise to the appeal, counsel for the appellant submitted that the Judge should “not put any reliance or weight on any of the matters set out in [the first sentencing Judge’s] Sentencing Remarks” and that the Judge was not bound by and should not use that sentence as a template for the sentencing task before her.[4] Counsel for the Director did not assist the Court with submissions on this point.
[4] Transcript of proceedings on 6 April 2020 in R v Warne (DCCRM-17-947) at page 2 (lines 22-30).
The Judge noted the submissions of counsel for the appellant about the role of the earlier sentencing remarks and said, “I therefore proceed to consider the matter afresh.”[5]
[5] Sentencing Remarks in R v Warne (DCCRM-17-947) dated 21 April 2020 at page 1 (Judge Deuter).
Her Honour noted that she had not had an opportunity, as the first sentencing Judge had had, to hear the evidence at trial, but that she had instead reviewed the transcript and considered the exhibits.
The Judge set out the circumstances of count 1 and, separately of count 3. These offences were on different occasions. She then described the offending that gave rise to counts 4 to 8 inclusive, which occurred over a 2 day period.
Her Honour noted that the offences did not occur in isolation but arose against the background of domestic violence over a period of nearly 12 months, and described the impact of the offending on the victim. The Judge also referred to the appellant’s lack of remorse as a factor relevant to the sentencing exercise. Her Honour canvased the appellant’s submission, through counsel, that the victim had at times been the instigator of violent acts directed at the appellant as evidence of a relationship characterised by disharmony. Counsel for the appellant also raised the physical capabilities of the victim, which the Judge did not find to lend support for any factor favouring leniency.
The Judge described the appellant’s behaviour as “vicious, cowardly and inexcusable”.[6] Her Honour referred to the need for personal and general deterrence. Her Honour set out the appellant’s personal circumstances including his positive employment history and his antecedents which were minor and historical. Her Honour noted the content of various character references but did not find them of assistance except insofar as they indicated honesty in the workplace.
[6] Ibid at page 7.
Her Honour acknowledged that there had been methamphetamine use within the relationship and that it was part of the backdrop to the offending. Her Honour was reluctant to endorse the appellant as a good candidate for rehabilitation given his lack of contrition and the fact that he had only addressed drug addiction in prison, and not the causes of his violent behaviour. The Judge also referred to the factors of denunciation, deterrence, punishment and protection of the community.[7] Having done so, her Honour rejected the appropriateness of a suspended sentence.
[7] Ibid at page 9.
In terms of the approach taken to the sentence, the Judge grouped counts 1 and 3 together. These were the offences of assault and aggravated assault causing harm that occurred in November and December 2016 respectively. In reliance on s 26 of the Sentencing Act 2017, a sentence of 1 year and 6 months imprisonment was imposed. Her Honour then turned to the remaining counts, which were grouped and given a single sentence. For this group of offences, the Judge imposed a sentence of 5 years’ imprisonment.[8]
[8] Ibid at page 9.
After considering the relationship between the two groups of offending and the totality principle, the sentencing Judge determined that it was appropriate to apply partial concurrency to the two sentences to arrive at a total sentence of 5 years and 6 months. That sentence was then reduced to take account of time the appellant spent in custody before trial, and an allowance for a period spent on home detention bail. The sentencing Judge arrived at a head sentence of 4 years and 9 months’ imprisonment, backdated to 1 April 2019, and imposed a non-parole period of 3 years and 4 months.
The appeal
The appellant appealed on the following grounds:
1That it was an error to impose a head sentence and a non-parole period that was greater than that which had been imposed prior to the appellant’s successful appeal;
2That the sentencing Judge’s starting point was too great;
3That the sentencing Judge erred in finding that home detention was not appropriate in all the circumstances;
4That the sentence is manifestly excessive.
Permission was granted in respect of grounds 1, 2 and 4 and refused in respect of ground 3. The appellant pursued all grounds before this Court.
The appellant’s submissions
The appellant’s primary focus on appeal was ground 1, by which the appellant argued that the Judge had erred in failing to adopt the appropriate approach on re-sentencing. The appellant submitted that the sentencing exercise was properly informed by R v Baltensperger.[9] In that case, the sentencing judge imposed a higher sentence for five counts of rape following a second trial, than the first sentencing judge had imposed following the first trial, and where the factual basis for the sentence was almost identical. The initial sentence was 12 years’ imprisonment and a non-parole period of 9 years and the second sentence was 15 years’ imprisonment and a non-parole period of 11 years. In dismissing the appeal, this Court considered the principles guiding the imposition of subsequent sentences for the same offending. The Court determined that whilst the discretion remained in respect of the performance of the function on the second occasion, it required consideration of the earlier sentence and adherence to the principle that the earlier sentence would be departed from only on rare occasions when the earlier sentence was determined to be manifestly inadequate.
[9] (2006) 96 SASR 34; [2006] SASC 246.
The appellant identified that there was no evidence that the Judge adopted the approach, and in particular, no evidence that her Honour considered that the earlier sentence was manifestly inadequate. In fact, the only evidence regarding the earlier sentence available to the Judge apart from the sentencing remarks themselves was that the appellant had filed a notice of appeal in respect of that earlier sentence, alleging manifest excess.
Ground 2 was articulated in a manner that allowed it to be considered as an extension of Ground 1 or a ground in its own right. In the absence of any reference to the original sentence, the appellant contended the Judge’s starting point was too high, either because there was no reason to deviate from the first sentencing Judge’s approach, or because there was a reason to deviate, but such deviation ought to have been one that commenced from a lower point because the exercise no longer required consideration of count 2.
Ground 3 was not pressed by the appellant in his outline or in oral submissions.
Ground 4 alleged manifest excess. This ground was not argued beyond that which arose from the error alleged in Ground 1, except in one particular. The appellant submitted that in respect of the original appeal against sentence that was not proceeded with, the Director wrote to the appellant’s counsel conceding permission to appeal on the basis that there had been a possible misstatement of the maximum sentence in the original sentencing remarks. Counsel for the appellant on the current appeal referred to this as indicative that the appeal was likely to succeed. In turn, that might suggest that an appropriate starting point for the Judge on re-sentencing could only have been lower, and not higher, than that adopted by the original sentencing Judge.
The Director’s submissions

The Director did not challenge the proposition that R v Baltensperger contained the principles governing the disposition of this appeal, but referred the Court to passages in that decision by both White J and Vanstone J to the effect that there was no rule binding a judge on re-sentencing to the outcomes of an earlier sentence.[10] The Director submitted that the appropriate approach for this Court is to examine whether the sentence under appeal is justifiable. It was conceded that sentencing remarks on a re-sentence should ordinarily identify the reasons for departure from an earlier sentence[11] but noted that any deficiency in this regard was explicable by reference to the Judge responding to defence counsel’s exhortation to disregard the earlier sentence.
[10] Written submissions of the respondent to appeal against sentence dated 15 July 2020 at [9]-[10].
[11] Ibid at [10]-[11].
The Director defended the Judge’s sentence, addressing grounds 2 and 4 compendiously with submissions directed at establishing that the factors taken into account by the Judge, and their consideration, was undertaken in an orthodox manner that revealed no excess.
Consideration
In R v Baltensperger, Bleby J canvassed the authorities in order to address the dissonance between the earlier decisions of the Court in R v Garrett[12] and R v Pahuja (No 2).[13] In R v Garrett the Court, in answer to a question reserved, stated that the nature of the task of a judge on a re-sentencing is to determine the matter de novo.[14] Wells J described the re-sentencing judge as retaining an “unimpaired” discretion to impose a just sentence.[15] This approach was subsequently not followed by the Full Court of New South Wales in R v Gilmore[16] in which the Court referred to policy reasons that led to the view that the re-sentencing judge should not impose a sentence that exceeded the earlier sentence. Those policy reasons, not referred to in R v Garrett, are that a defendant ought not risk the imposition of a heavier sentence as a consequence of appealing a defect in the trial and further, that there ought be no risk that the community would apprehend a heavier sentence on a re-sentence as the Court’s response to the defendant’s exercise of the right of appeal.[17] Street CJ modified the position expressed in R v Gilmore upon further considering the issue in R v Bedford,[18] describing it as a prima facie approach rather than a principle and stating that the re-sentencing judge is not absolutely fettered by the earlier sentence but rather obliged to give effect to his or her own sentencing discretion. Where a longer sentence is imposed, his Honour recommended providing a “specific indication of the reasons” therefor.[19]
[12] (1978) 18 SASR 308.
[13] (1989) 50 SASR 551.
[14] R v Garrett (1978) 18 SASR 308, 313 (Hogarth ACJ and White AJ).
[15] Ibid at 316.
[16] (1979) 1 A Crim Rep 416.
[17] Ibid at 419-420 (Street CJ).
[18] (1986) 5 NSWLR 711.
[19] Ibid at 713-714.
This Court then considered the issue in R v Pahuja (No 2)[20] in which, after a second trial, the re-sentencing judge reduced the defendant’s sentence. White J said that the re-sentencing judge was not obliged to impose the same sentence as had followed the first trial if convinced that it was manifestly excessive or inadequate, but that the re-sentencing judge would otherwise “have regard to and generally order the same sentence.”[21]
[20] (1989) 50 SASR 551.
[21] Ibid at 562.
In R v Martin (No 6),[22] Martin J was required to consider the appropriate non-parole period to impose on a prisoner who had been convicted of murder for the third time. After reviewing the authorities of Garrett, Gilmore and Bedford, Martin J said,
“…. in my opinion there is considerable merit in an approach which requires the second sentencing judge not only to have regard to the sentence imposed on the first occasion, but which directs that the second sentence should not exceed the first sentence unless the judge considers that there is good reason for departing from the first sentence. Good reason might exist, for example, because of a change in the evidence or because, after careful consideration of the first sentence, the judge is of the view that the first sentence was inadequate.”[23]
[22] (2000) 109 A Crim R 508; [2000] SASC 9.
[23] Ibid at [13]. Also referred to in, R vBaltensperger (2006) 96 SASR 34; [2006] SASC 246 at [145] (Vanstone J).
R v Baltensperger was cited with approval in R v J, SM[24] in which this Court was required to consider an allegation of manifest excess in a sentence imposed. The accused was originally convicted of the charges of inciting a person under the age of 16, being his daughter who was then 14, to commit an act of gross indecency, and three counts of unlawful sexual intercourse, and one count of incest. Following the trial, the accused was sentenced to 12 years’ imprisonment with a non-parole period of 6 years. On appeal, the conviction in respect of one of the counts of unlawful sexual intercourse and the count of incest were overturned and, following a re-trial, the accused was convicted of the remaining acts of gross indecency and two counts of unlawful sexual intercourse. The same Judge sentenced the accused after each trial. Following the second trial, the Judge imposed a sentence of 9 years and 1 month with a non-parole period of 4 years and 1 month, reduced from 10 years and 5 months after allowances.
[24] [2015] SASCFC 185.
On his appeal against sentence, the defendant maintained that the first head sentence was manifestly excessive. He submitted that the second head sentence was also manifestly excessive and that it failed to properly account for the reduced scope of the offending for which he was convicted. In rejecting these arguments, the Court (Sulan, Peek and Nicholson JJ) said:[25]
We are strongly inclined to the view that the first sentence was not manifestly excessive. Nevertheless, it is unnecessary to form a concluded view about this. The first sentence is not material to the sentencing exercise undertaken by the Judge following the second trial other than as, perhaps, identifying an upper limit which should not be exceeded by any subsequent sentence [citing R v Baltensperger].
The sentencing exercise under consideration was to be attended to by the Judge afresh based on the second trial evidence and jury verdicts and the other sentencing materials placed before the Judge on the second sentencing occasion. The Judge was not entitled to have regard to the evidence in, and jury verdicts obtained following, the first trial. There is no reason to doubt that this was the approach adopted by the Judge. It follows that no assistance is to be had by comparing the first head sentence with the second head sentence and enquiring whether a sufficient reduction was allowed following the removal of the two additional offences involving penile-vaginal sexual intercourse.
The real question before the Court is whether or not the sentence imposed on the second occasion is to be seen as manifestly excessive. In this respect, the question to be asked is whether, upon the facts, the sentence imposed was unreasonable or plainly unjust.
(footnotes omitted)
[25] Ibid at [11]-[13].
By virtue of the submissions made to the Judge and the content of the sentencing remarks in this matter, it may be inferred that the Judge overlooked the approach by which a Judge in re-sentencing considers himself or herself required to firstly have regard to the original sentence and only upon concluding that if there is good reason to depart from it, sentencing in a different manner. Where there is a departure, it would be appropriate to provide some explanation for it and in this case, there was none.
The inference that the Judge did not adopt the approach identified in R v Baltensperger, gains further support from the lack of any significant disparity between the Judge’s sentence and the original sentence. The two sentences vary by four months. Had the Judge determined that there was good reason to depart from the original sentence, it might have been expected that the difference would be greater.
As the approach taken did not adopt the appropriate path, the sentencing process miscarried by way of a process error. I take the opportunity to restate that the error appears to have arisen in the context of sentencing submissions by counsel that failed to identify the appropriate approach and, in the case of the appellant’s submissions, invited the wrong approach. The appropriate course of action is to sentence afresh.
It is not strictly necessary to address the other grounds of appeal. For completeness, grounds 2 and 4 fall away once it is concluded that that Judge’s approach required as a starting point consideration of the earlier sentence. Permission to appeal was refused in respect of Ground 3. It was not the subject of submissions by the appellant. I would refuse permission on this ground.
Re-sentencing in accordance with the Baltensperger approach
On the occasion of the imposition of the first sentence, the sentencing Judge described the offending in global terms, the effect on the victim and the personal circumstances of the appellant. His Honour noted that there was no evidence before him of the appellant taking steps towards rehabilitation.[26] He observed that there was no evidence of remorse or contrition.
[26] Sentencing Remarks in R v Warne (DCCRM-17-947) dated 26 September 2019 at page 2 (Judge Rice).
The sentencing Judge utilised s 26 of the Sentencing Act and elected not to “discriminate between the individual offences”.[27] The starting point was a period of 5 years’ imprisonment, reduced by 4 months and 3 days for time in custody and by a further 2 months for a period spent on home detention bail. The rounded down head sentence became one of 4 years and 5 months. His Honour imposed a non-parole period of 3 years and backdated the sentence to commence on 1 April 2019 when the appellant went into custody.[28]
[27] Ibid at page 3.
[28] Ibid.
Taking the approach endorsed in R v Baltensperger, it is appropriate to adopt that sentence subject to, firstly, consideration as to whether it was manifestly excessive or inadequate and, secondly, any circumstance that has changed as between the occasions of the sentences that might require a different sentence to be imposed.
Noting that there are many ways to approach the sentencing exercise, I would observe that the offending falls naturally into three groups; the initial two separate assaults, the firearms offence, and the course of conduct in February 2017 that included the threat and the subsequent assaults. While the sentencing Judge did not identify notional sentences, it is useful to undertake that exercise to assess whether the sentence was open to be imposed.
Of the first two assaults, one was a basic assault and the subsequent occasion was one of assault causing harm aggravated by the fact that an intervention order was in place when it was committed. The maxima for these offences are 2 years’ imprisonment and 4 years’ imprisonment respectively. Taking into account the injuries caused, the domestic context and the need for personal and general deterrence in respect of this type of conduct, I would impose a sentence in the vicinity of 18 months’ imprisonment for these two offences.
The firearms offence stands alone. There was little information before the Court regarding this offence. I observe that the appellant’s work as a stock agent in rural areas is likely to have brought him more often into contact with firearms and their lawful use than if he were a person who lived in a city and this may go some way to explaining his possession of a firearm. However, the presence of firearms in households contributes to the danger presented to victims of domestic violence. The Director submitted that the threat to public safety posed by firearms which has led to their strict control requires that certain offences in respect of firearms usually call for a custodial sentence to be served.[29] A notional sentence of imprisonment of approximately 6 months is appropriate.
[29] Written submissions of the respondent to appeal against sentence dated 15 July 2020 at [19].
The course of conduct in February 2017 was sustained and violent. The appellant caused injuries to the victim and also sought to control her with frightening and dangerous behaviour tending to place her in fear for her life and to submit. That was reinforced by the explicit threat made by the appellant to the victim whilst he directed a firearm at her at close range. There has been no expression of remorse or contrition by the appellant, or any indication of insight on his part with respect to his conduct. For this course of conduct a penalty in the range of 3 to 3 and a half years’ imprisonment would be appropriate.
Those penalties would properly be approached as requiring accumulation. They describe three separate occasions of offending. The February course of conduct perpetuated and escalated the earlier incidents of control exerted by violence by the appellant over the victim. This Court has recognised the need to place offending such as this within the context of the relationship and the manner by which such incidents effect control through fear. In R v Saunders, Hinton J, with whom Peek J agreed, said:[30]
In R v Hamid, Johnson J, with whom Hunt AJA and Latham J agreed, said after referring to a number of authorities dealing with sentencing in cases of domestic violence:
These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence, Australian Domestic and Family Violence Clearing House”, Issues Paper 9, 2004, pages 6-7.
(footnote omitted)
[30] R v Saunders [2017] SASCFC 86 at [41].
For this reason, the two sets of assaults should not be given any concurrency. The firearms offence, though coming to light through the February course of conduct, is also properly recognised as offending in its own right and could properly be treated as requiring a cumulative approach. However, it would also be open to view it as so intimately connected with the offence of threaten life to apply some concurrency as between those sentences. Taking all of these factors into consideration, a notional sentence in the range of 4 and 5 years for the whole of the offending is appropriate. This conforms sufficiently to the original sentencing Judge’s orders to indicate that the sentence originally imposed was neither manifestly excessive nor inadequate.
In respect of this preliminary position, regard must then be had to the submission made on appeal that the original Sentencing Judge’s sentence, which reached a similar outcome, was manifestly excessive. There was no elaboration of the basis for that claim except to identify that the Director had, in communicating to the appellant’s solicitor prior to the earlier sentencing appeal that did not proceed, indicated that the Director would not oppose permission being granted because there may have been an error in the sentencing remarks on the occasion of the first sentence, regarding the penalty maxima. The particular penalty maximum said to have been stated in error was not identified before us by either counsel. The error appears to have arisen when the original Sentencing Judge ascribed the maximum penalty for each of the four counts of aggravated assault as 4 years’ imprisonment rather than correctly identifying the maximum as 3 years.
This Court considered whether a misapprehension as to the maximum penalty is an error in R v Bechara,[31] a drug-trafficking case, in which Kourakis CJ said:[32]
The Judge recorded in his sentencing remarks that he was proceeding on the basis that the maximum penalty for the offences of trafficking in methylamphetamine was imprisonment for 15 years. The Director concedes that the applicable maximum was 10 years. An error as to the maximum sentence applicable to the offence for which an offender is sentenced is an error of law which may be described both as a failure to have regard to a relevant consideration, namely the maximum penalty prescribed by law, and as having regard to an irrelevant circumstance, namely a maximum penalty which is not applicable to the offence.
Counsel for the Director put an argument that anerror as to the maximum penalty does not necessarily vitiate the resulting sentence. He submitted that the error must be “material”. Indeed the appellant’s written submissions appeared to accept that it was necessary to identify some discernible effect on the sentence caused by the reference to the wrong maximum penalty.
It is trite that an appeal against sentenceis to be determined in accordance with the principles stated in House v The King, and recently reaffirmed in Bugmy v The Queen.An error of law, analogous to those errors which, in public law, vitiate administrative decisions, must be established. When such an error is established, it is not necessary to also show that the Judge would have imposed some other sentence but for the error. The error vitiates the exercise of the sentencing discretion and it therefore falls to be exercised afresh by the appeal court. Plainly enough, as s 353(4) of the Criminal Law Consolidation Act 1935 expressly provides, the appeal may still be dismissed by the Full Court if it considers that the same sentence should have been passed. However, the dismissal is simply the practical result of the coincidence between the sentence that the Full Court would have imposed, in accordance with sentencing principle, and the sentence which the Judge happened to get right, notwithstanding the express error. That coincidence should not be mistaken for a modification of the principle stated in House v The King.
(footnotes omitted)
[31] (2014) 119 SASR 49; [2014] SASCFC 36.
[32] Ibid at [27]-[29] (Kourakis CJ, with Sulan and Vanstone JJ agreeing).
Applying the reasoning to the current matter, the first sentencing process appears to have been affected by error, but it does not follow that its outcome was wrong. Having undertaken the exercise of constructing a notional sentence, the original sentence is not properly described as manifestly excessive.
The effect of the re-trial on the sentence
However, it remains to be considered whether the original sentence should be adopted when the appellant was subsequently acquitted of a count of aggravated assault causing harm. In considering the effect of the removal of one count of aggravated assault causing harm from the offending, the appellant’s counsel described the relevant conduct as “not an insignificant assault”.[33]
[33] Transcript of appeal hearing in R v Warne (SCCRM-20-137) dated 21 July 2020 at page 7.
Having regard to the circumstances of count 2, it would be appropriate to view it in isolation as attracting a penalty in the vicinity of 4 to 6 months imprisonment. As it was an act undertaken separate from the other acts charged, it does not demand to be treated as attracting principles of concurrency with any of the other components of the sentence. It is properly the basis for imposing a sentence that is lower, to that extent, than the original sentence.
Accordingly, I would allow the appeal and re-sentence the appellant to 4 years’ imprisonment after the reduction for time spent in custody and on home detention. I would impose a non-parole period of 2 years and 8 months, being the same proportion of the head sentence as that imposed by the first sentencing Judge. The head sentence and non-parole period will commence on 1 April 2019.