South Australia

Supreme Court - Full Court

  • R v Hibeljic [2018] SASCFC 35 (11 May 2018) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Imprisonment’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Sexual and reproductive abuse’ – ‘Women’ – ‘Young people

    Charges: Blackmail x 1; Knowingly distributing an invasive image x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant had been in a relationship with the victim. They were both 18 years old. He threatened to distribute a video of the victim with her breasts exposed unless she had sex with him, and in fact distributed it to three people (her friend, new boyfriend and father). He knew that her father was of Syrian background, very strict and was likely to react harshly if he became aware of the video ([10]). Upon watching the video, her father subjected her to ‘significant physical harm’ in a ‘frightening and vicious physical attack’ ([22]). The victim’s relationship with her family was significantly damaged, and she was forced to leave Adelaide and abandon her tertiary education ([24]).

    The sentencing judge sentenced the appellant to 3 years and 3 months’ imprisonment with a non-parole period of 15 months.

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The Court of Appeal dismissed the appeal, holding that the sentence was not manifestly excessive. It was significant that both offences involved a sexually explicit video of the victim, and the appellant’s gross betrayal of trust involved in distributing it ([45]). The blackmail was a ‘particularly serious instance’ of this type of offending ([46]). The appellant was aware of the likelihood of a serious and significant reaction on the part of the victim’s father ([51]).

    The appellant submitted the sentencing judge did not properly take into account his youth, lack of criminal history, general good character and likelihood of rehabilitation ([60]). However, the Court held that the sentence of imprisonment, without suspension or home detention, was reasonably imposed ([63], [68] [81]).

  • R v Taheri [2017] SASCFC 115 (8 September 2017) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Character reference’ – ‘Imprisonment’ – ‘Physical violence and harm’ – ‘Risk of deportation’ – ‘Systems abuse’ – ‘Women’ – ‘Written reference

    Charges: Aggravated serious criminal trespass in a place of residence x 1; Aggravated threatening harm x 2; Aggravated threatening life x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and complainant were married but separated. An intervention order was in place. The appellant broke into the complainant’s house while the complainant and her sister were inside. He cut through a flyscreen window with a knife and put a rope around the complainant’s throat. The appellant threatened to kill the complainant and hurt her sister if she did not withdraw the complaint she made to the police about him ([10]). The appellant came to Australia as a refugee and was living on a permanent residence visa.

    The appellant was sentenced to a head sentence of five years’ imprisonment with a non-parole period of 2 years ([5]). The judge ordered partial concurrency to the extent of 12 months ([34]).

    Issues: The appellant appealed on 4 grounds, that the judge erred in:

    1. failing to make a finding as to the risk the appellant posed to community safety in declining to make a home detention order under s 33BB Criminal Law (Sentencing) Act 1998 (SA) ([15]);
    2. the approach in relation to partial concurrency;
    3. her treatment of a written reference provided on behalf of the appellant;
    4. failing to consider the risk of deportation in imposing a sentence of more than 12 months ([7]).

    Decision and Reasoning: The appeal was dismissed.

    On the first ground, Nicholson J held that s 33BB Criminal Law (Sentencing) Act 1998 (SA) does not require a sentencing judge to make a specific finding as to the risk that an offender poses to the community. Nicholson J held that declining to order home detention was within the judge’s discretion ([31]).

    On the second ground, Nicholson J held that it was open to the judge to discount the written reference as to character. The reference did not consider the appellant’s character apart from how he presented himself in a social setting ([20]-[22]).

    On the third ground, Nicholson J held that concurrency between the sentences was within the judge’s discretion ([36])

    On the fourth ground, Nicholson J held that on the assumption that the risk of deportation was relevant, the sentencing judge considered those matters ([46]).

  • R v Saunders [2017] SASCFC 86 (27 July 2017) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Breach of bail’ – ‘Contravention of a protection order’ – ‘Damage to property

    Charges: Property damage x 1; Breach bail x 1; Contravening term of intervention order x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant went to the complainant’s residence, knocked on her bedroom window and then smashed the window by punching it ([10]). The appellant was subject a bail agreement and intervention order that prohibited him from approaching the complainant ([11]). The sentencing judge imposed a head sentence of 10 months and 22 days ([2]-[3]).

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed (see [29], [30] and [47]). Justice Stanley commented that ‘the very point’ of the appellant’s bail agreement and intervention order was that the complainant could feel safe and protected in her own home ([26]). His Honour emphasised that ‘the purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical’ and which ‘can have profound consequences for the victim’ ([27]). Justice Hinton added that ‘it is important to the maintenance of confidence in the protection that intervention orders are intended to provide that the courts treat any breach as very serious’ (emphasis added), not only physical violence ([44]). The sentence was at the high end of the permissible range, but was not plainly wrong (see [28], [47]).

  • R v Sykes [2017] SASCFC 59 (31 May 2017) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Burglary’ – ‘Contravention of a protection order’ – ‘Kidnapping’ – ‘Separation’ – ‘Sexual and reproductive abuse

    Charges: Aggravated serious criminal trespass in a place of residence x 1; Aggravated kidnapping x 1; Aggravated threaten life x 1; Aggravated indecent assault x 1; Aggravated assault causing harm x 1; Aggravated threaten harm x 2; and threaten harm x 1; Breach intervention order x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and victim had been in a relationship ([6]-[7]). Shortly after the relationship had ended, the appellant entered the victim’s house at midnight ([9]). He bound her arms and legs, blindfolded her and removed her clothes ([11]). He told her that he was going to cut off her nipples, breasts and fingers, break her nose, penetrate her with objects, and drive her to a secluded place to make her suffer ([12]-[16]). The offending continued for at least several hours ([22]). The appellant pleaded guilty to the offences. He was sentenced to 11 years and one month imprisonment with a non-parole period of six years.

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Parker J, Vanstone J and Blue J agreeing, held that the sentence took into account all relevant factors, and the sentence was within an appropriate range.

    Parker J stated at [33]:

    ‘Every person has a right to feel safe in their house and the appellant had violated the security and safety of the victim and also violated her personally. He had terrorised her for what must have been hours in her own home. In her view his behaviour appeared to have been deliberately designed to inflict the maximum amount of terror.’

    Counsel for the appellant referred to two other cases concerning home invasions (R v Siviour [2016] SASCFC 51 and R v Stephen John Forbes DCCRM 15-1418 and 15-340). Parker J emphasised that conduct giving rise to charges of trespass and kidnapping may be extremely varied, and therefore the length of reasonable sentences may differ ([58]). His Honour considered that the appellant’s sexual offending against a former domestic partner was an aggravating factor not present in Siviour and Forbes ([59]). His Honour held that the sentencing judge balanced the appellant’s lack of criminal history, expression of remorse and strong work history, against the serious nature of the offending and the enormous impact on the victim ([62]).

  • R v Nelson [2017] SASCFC 40 (8 May 2017) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    General and specific deterrence.’ – ‘People affected by substance abuse’ – ‘Traumatic brain injury

    Charges: Causing serious harm with intent to cause serious harm x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The victim and defendant were formerly in a domestic partnership. The offences occurred on one occasion. In the presence of other people at their home, the defendant: grabbed the victim and dragged her outside; began to call her names; repeatedly hit her head and kick her head and body ([6]). The victim sustained an extremely severe traumatic brain injury, and was likely to be left with long-term cognitive defects ([7]). The sentencing judge had regard to the defendant’s disadvantaged background and low level of cognitive functioning (attributed to the defendant having sniffed petrol since he was four years old) (see [10]-[20], [26]-[27]).

    The defendant was sentenced to 3 years and 3 months’ imprisonment, with a non-parole period of one year and six months.

    Issues: The prosecution argued that the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. The Court (Parker J, with Kourakis CJ and Nicholson J agreeing) found that this was an exceptional case that required intervention by the appellate court ([36]). Parker J considered that the sentence did not give enough weight to the need for general and specific deterrence in domestic violence offences. Parker J stated (at [45]-[47]) that:

    “It was necessary for the sentencing judge to take into account, as his Honour did, the defendant’s background of disadvantage and social deprivation arising from his upbringing in a traditional and remote Aboriginal community. However, the fact that … the defendant had very recently been released after a period of imprisonment imposed for two assaults on a different female drinking companion operated to reduce the leniency that his personal circumstances might otherwise have attracted. Moreover, the attack by the defendant upon his domestic partner was particularly brutal and has had grave consequences for her … The sentence did not give appropriate effect to the views consistently expressed by this Court concerning the need to give significant weight to considerations of specific and general deterrence when sentencing defendants who have engaged in serious domestic violence.”

    The defendant was sentenced to 5 years imprisonment, with a non-parole period of 3 years.

  • R v Neilson [2016] SASFC 90 (19 August 2016) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    People who are gay, lesbian, bisexual, transgender, intersex and queer’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Women

    Charges: Causing harm with intent to cause harm x 1; Aggravated assault x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and one of the complainants (J) were divorced ([8]). The appellant went to the matrimonial house, where J lived with her new partner (M), the other complainant ([10]). The appellant pushed the J and M into the house. The appellant grabbed M around the throat, pushed her against a wall and punched her ([11]). The appellant picked J up off the floor and threw her onto the dining table ([13]). M suffered ongoing damage to her eye and both women suffered psychological consequences ([17]).

    Issues: Whether the judge erred in not suspending the sentence.

    Decision and Reasoning: The appeal was dismissed. The appellant had favourable personal circumstances, including his lack of criminal history, little risk of reoffending, remorse and lack of planning in the attack ([25]-[33]). Bampton J held that the sentence was within range, and those factors were reflected in the fixing of the non-parole period at approximately 42 percent of the head sentence ([41]). The favourable factors were appropriately balanced with the unfavourable factors, including the seriousness of the offence, the ongoing injuries, the fact that the offences were committed in the victims’ home, and the fact that the offences constituted domestic violence ([43]).

  • R v Ritter [2016] SASCFC 88 (16 August 2016) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Assault causing harm’ – ‘Causing harm with intent’ – ‘Fresh evidence’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Rehabilitation

    Charge/s: Assault causing harm, causing harm with intent.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and the female victim had been in a relationship for two years. His behaviour towards her had been violent and controlling. On 19 March 2014, the applicant was yelling abuse at the victim and she became so fearful she ran into the streets. He chased her and punched her in the face. On 22 April 2014, the applicant verbally abused the victim, hit her around the head with a pillow and punched her to the left side of her mouth. The second assault caused injuries requiring surgery. As a result of the two incidents, the victim had scars on the left and right sides of her mouth. There was also evidence of a number of uncharged acts. The applicant was sentenced to a total head sentence of six years and eleven months imprisonment, with a non-parole period of five years.

    Issue/s:

    1. Fresh evidence, a psychologist’s report and a report from an officer of the Department of Correctional Services, ought to be admitted.
    2. The head sentence and the non-parole period were manifestly excessive.
    3. The sentencing judge erred in not having or seeking materials on which a proper assessment could be made of the applicant’s prospects for rehabilitation.

    Decision and Reasoning: The appeal was dismissed. First, Parker J held that the reports were not to be received as fresh evidence. The psychologist report could have been obtained with reasonable diligence for use at the trial, it added very little to what was before the sentencing judge, and the psychologist was not completely briefed on the applicant’s substantial criminal history. The report from Correctional Services also did not add anything significant to what would have been before the sentencing judge (see [50]-[67]).

    Second, the head sentence was not manifestly excessive. This was in light of the gravity of the offending conduct, the abusive nature the relationship and the applicant’s significant criminal history of violence. Parker J further rejected the submission that the two sentences ought to have been served concurrently. The offending conduct occurred almost five weeks apart (see [78]-[86]). The non-parole period was also not manifestly excessive. Considerations of deterrence, prevention and punishment militated towards a relatively higher non-parole period, as did the nature of the offences and the context in which they occurred (see [87]-[91]).

    Third, the sentencing judge did not err in concluding that the appellant had extremely poor prospects for rehabilitation. The appellant had a long criminal history, including numerous convictions for assaults (many involving domestic violence). He also had many convictions for breach of restraining orders, failure to comply with bail agreements and breaches of bonds (see [92]-[96]).
  • R v Gardiner [2015] SASCFC 107 (5 August 2015) – Supreme Court of South Australia (Full Court)
    Circumstantial evidence’ – ‘Evidence’ – ‘Expert testimony’ – ‘Grievous bodily harm’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-offence conduct’ – ‘Relationship evidence

    Charge/s: Murder.

    Appeal Type: Application for permission to appeal against conviction.

    Facts: The applicant was convicted of the murder of his domestic partner. The applicant had camped with the victim in his car in an isolated location. The victim’s body was found in the car. Medical evidence relating to the nature of the injuries and the cause of death was led at trial. The trial judge found on the basis of this evidence that the victim suffered a severe beating. There was no dispute that the injuries were caused by the applicant. The trial was concerned with whether the evidence could prove that the injuries that the applicant inflicted caused her death and whether they were inflicted with an intention to cause grievous bodily harm.

    Issue/s:

    1. Whether the guilty verdict was unreasonable because the evidence did not prove beyond reasonable doubt the requisite intent for murder.
    2. Whether the judge misinterpreted the medical evidence in concluding that severe force was required to cause a certain injury.
    3. Whether the judge misused evidence of the applicant’s post-offence conduct, such as not calling an ambulance while claiming he had.

    Decision and Reasoning: Leave to appeal was granted but the appeal was dismissed.

    1. There was a long history of violence in the relationship. The applicant had previously been charged with assaulting the victim. In this context and also taking into account the extent and number of injuries suffered by the victim, Kourakis CJ (with whom Blue J and Stanley JJ agreed) held that the trial judge was correct in concluding that the evidence showed beyond reasonable doubt that the applicant intended to cause grievous bodily harm.
    2. The Court acknowledged that the judge did mistakenly conclude that the doctor’s evidence indicated that severe force was required to cause an injury to the victim’s liver. However, the judge did not reason from this misunderstanding to reach her conclusion. Instead, the judge reasoned that the applicant had the requisite intention from evidence of all the injuries, not just evidence of the liver injury. The judge then correctly reasoned from the nature and extent of the injuries that the applicant had intended to cause grievous bodily harm.
    3. The applicant lied to various witnesses that he had called an ambulance but it had not arrived. In fact, he did not call an ambulance. The Court found that the judge correctly used this evidence to show that he was aware how badly the victim was injured, and that his failure to call an ambulance showed he possessed the requisite intention.
  • R v McDonald [2015] SASCFC 99 (29 July 2015) – Supreme Court of South Australia (Full Court)
    Contemporaneity between intention and action’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm

    Charge/s: Murder.

    Appeal type: Appeal against conviction.

    Facts: The appellant was convicted by a jury of murdering his de facto partner. It was not in dispute that he inflicted the blows that caused her death. The pathologist’s view was that the appellant inflicted at least 50 blows. The injuries were inflicted over several hours, possibly intermittently. The issue at trial was whether he had inflicted these blows with the requisite intent to cause death or grievous bodily harm. The appellant was highly intoxicated at the time of the incident.

    Issue/s:

    1. Whether the verdict was unreasonable and not supported by the evidence.
    2. Whether the trial judge erred by not directing the jury of the following - that it is necessary that the intention to cause death or grievous bodily harm exists contemporaneously with the infliction of the injuries that caused the victim’s death.

    Decision and Reasoning:

    1. This argument was dismissed – see at [4].
    2. The Court agreed that parts of the judge’s directions amounted to an error of law. A correct direction was initially given by the trial judge. This was – ‘The prosecution must prove that at the time that McDonald struck any collection of blows the combined effect of which was to cause a degree of internal bleeding…which caused LT’s death, he intended to kill her or cause her grievous bodily harm’ (see at [29]). However, the judge then gave subsequent directions to the jury. These directions stated that it was sufficient that the appellant formed an intention to kill or cause grievous bodily harm when any of the blows were struck, even if that particular blow (struck with the requisite intent) did not contribute to or cause the internal bleeding that led to her death. Other directions given by the judge were not capable of correcting this error. However, the appeal was dismissed pursuant to the proviso.

      See also at [33] where Kourakis CJ (with whom Sulan J and Parker J agreed) noted that the inference of intention, ‘overwhelmingly supported as it is by the evidence of the beating, is reinforced by the evidence of the prior violence to which the appellant subjected LT in their relationship and his admission that he was enraged at the time. The appellant is more likely by reason of those related circumstances to have formed an intention to cause grievous bodily harm relatively early on in the course of the beating.’

  • R v Capaldo [2015] SASCFC 56 (28 April 2015) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravating factor’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Possession of firearm’ – ‘Sentencing’ – ‘Where the offender is also a victim

    Charge/s: Various offences relating to the possession of a loaded, semi-automatic handgun.

    Appeal Type: Appeal against sentence.

    Facts: At trial, evidence was put before the judge relating to the violent behaviour of the appellant’s former partner. The appellant made a statement to police indicating that she obtained the handgun for her own protection. She pleaded guilty and was sentenced to one year and six months’ imprisonment with a non-parole period of 5 months.

    Issue/s: Whether the sentence should have been suspended and whether the trial judge demonstrated pre-judgment and an appearance of bias.

    Decision and Reasoning: The appeal was upheld. In a joint judgment, Gray and Sulan JJ found that the Judge impermissibly intervened in the trial process, giving rise to an appearance of bias in the eyes of a fair-minded lay observer. The judge constantly interrupted and in cross-examining the appellant, suggested that she was not willing to participate in a police interview, which was false. The Judge was also in error by not accepting the appellant’s explanation for the reasons that she possessed the firearm. The sentencing therefore proceeded on errors of fact. In resentencing, Gray and Sulan JJ acknowledged the serious nature of the offending, particularly that the gun was loaded and easily concealable. Counsel for the appellant conceded that a sentence of imprisonment was warranted. In mitigation, the appellant had no criminal history and had suffered serious abuse at the hands of her former partner, to the extent that she suffers from PTSD. As such, the head sentence was reduced to 17 months with a reduced non-parole period of 4 months and the sentence was also suspended upon the appellant entering into a good behaviour bond for 3 years. Kelly J also upheld the appeal but dissented with respect to re-sentencing and concluded that it should be remitted back to the District Court, given the disputed facts.

  • Rana v Gregurev [2015] SASCFC 58 (27 April 2015) – Supreme Court of South Australia (Full Court)
    Appeal’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Interim intervention order’ – ‘Purpose of intervention orders

    Appeal Type: Application for permission to appeal against a decision of a single judge of the Supreme Court who dismissed an appeal against a decision of a Magistrate who refused to make an interim intervention order.

    Facts: The applicant brought an application for an interim intervention order in the Magistrates’ Court against the respondent (the applicant’s former girlfriend’s mother). The applicant claimed that the respondent had been bullying, cyber stalking and contacting his psychiatrist online and in person, as well as defaming him on the internet. The basis of his application was that it was reasonable to suspect that the respondent would commit an act of abuse against him by causing personal injury and criminal defamation on the internet. In the original appeal to a single judge of the Supreme Court, Peek J dismissed every ground of appeal - see Rana v Gregurev [2015] SASC 37. The applicant had a long history of psychiatric issues, and a psychiatrist’s report detailed the impact of the websites on his general well-being (See at [31] of Peek J’s decision).

    Issue/s: Some of the issues concerned –

    1. Whether the applicant had a sufficient opportunity to present his application in the Magistrates’ Court.
    2. Whether the Magistrate correctly applied ss 8 and 10 of the Intervention Orders (Prevention of Abuse) Act 2009 (the Act) which define different types of abuse and sets out general principles which the Court must follow in considering intervention orders.
    3. Whether the Magistrate correctly exercised her discretion to refuse the applicant’s application and whether she should have found that there was evidence which gave rise to a reasonable suspicion that the respondent would commit an act of abuse.
    4. Whether the Magistrate correctly applied ss 6, 10 and 28 of the Act which set out what must be proven in an intervention order application.

    Decision and Reasoning: All aspects of the Supreme Court decision (Peek J - Rana v Gregurev [2015] SASC 37) were upheld by the Full Court.

    1. This argument had no substance – he appeared before the Magistrate on four occasions. The Magistrate was concerned to ascertain the detail of the case.
    2. Peek J (in the Supreme Court) noted at [14]-[15] that the purpose of the Act is to, ‘protect people when it is reasonable to suspect that somebody…will, without intervention, commit an act of abuse’. His Honour also noted that because abuse is defined so broadly, it is important for the courts to ensure that this does not result in the Act being abused through ‘specious or unwarranted claims’ which will have ‘detrimental consequences’ to the courts and to people who become the subject of unwarranted orders. The Magistrate correctly applied the Act to conclude that it was not reasonable to suspect that without an intervention order there would be any further abuse.
    3. In dismissing ground 3, the Court noted that the crucial issue is not whether acts of abuse had been committed in the past, but whether, without an intervention order, such acts would be committed again, and whether the imposition of such an order is appropriate in the circumstances.
    4. The Court found the Magistrate correctly approached the task in the application which was to decide whether there was a reasonable suspicion that an act of abuse would occur.
  • R v Koch [2015] SASCFC 31 (27 March 2015) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Causing serious harm with intent’ – ‘General deterrence’ – ‘Impact of offence on victim’ – ‘Physical violence and harm’ – ‘Relevance of guilty plea’ – ‘Sentencing’ – ‘Trespass

    Charge/s: Criminal trespass in a place of residence, causing serious harm with intent and using a motor vehicle without consent.

    Appeal Type: Application for permission to appeal against sentence.

    Facts: The victim of the offending was the mother of the respondent’s former partner. After entering her house by the back door, he questioned her about his relationship with her daughter. He became enraged, at which point he restrained her, pushed her to the floor and punched her multiple times to the side of the head. He provided no medical assistance to her and left her lying unconscious on the floor. The victim sustained lasting injuries as a result of the offending. The sentencing judge’s starting point was 6 years’ imprisonment. Taking into account his pleas of guilty, the respondent was sentenced to four years and six months’ imprisonment with a non-parole period of two years and three months.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning:

    In granting permission and allowing the appeal, the Court noted the high maximum penalties, (life imprisonment for criminal trespass and 20 years for causing serious harm with intent) and the relatively insignificant mitigating factors. The offending was ‘particularly brutal’ (See at [35]). Parker J (Kourakis CJ and Bampton J concurring) held that the notional starting point of 6 years was manifestly inadequate and the sentence itself was not adequate to amount to general deterrence or just punishment. See in particular at [42] – ‘General deterrence is a very important consideration in sentencing for offences of violence committed in the course of domestic disputes. The sentence imposed fails to provide the level of general deterrence necessary to ensure public confidence in the enforcement of the criminal law in this fraught area.’ The Court also found that the trial judge’s 25% discount for the guilty plea was too high. The respondent ‘had no practicable option other than to plead guilty’ (see at [46]), which needed to be taken into account in determining the quantum of the discount. The total effective sentence was therefore increased to six years and eight months (applying a 20% discount for the guilty plea), with the non-parole period set at four years and two months.

  • Groom v Police [2014] SASCFC 125 (19 November 2014) – Supreme Court of South Australia (Full Court)
    Breach of intervention order’ – ‘Consent to confirmation of intervention order’ – ‘Interim intervention order’ – ‘Systems abuse

    Appeal Type: Application for permission to appeal against a decision of a single judge of the Supreme Court.

    Facts: After the appeal in Groom v Police (No 3) was upheld, the matter was remitted back to the Magistrates’ Court, where confirmation of the interim intervention order was again made. The applicant consented to the order following negotiation with the prosecution who agreed to withdraw 31 charges for breach of the order. The applicant then appealed to a single judge of the Supreme Court (Kelly J), and argued that consent should be withdrawn because he was under ‘enormous stress’ and had been ‘railroaded’ (See at [7]). Kelly J refused permission to appeal because the applicant’s counsel had been properly briefed to represent him in the Magistrates’ Court, the consent to the confirmation was informed, the applicant was present throughout the process and he raised no objection and confirmed to the Magistrate that he would accept the order. This was different to the hearing considered in Groom v Police (No 3), where the applicant was in custody and believed he could not properly defend the proceedings.

    Issue/s: Whether the appellant could withdraw his consent to the intervention order and have the confirmation set aside.

    Decision and Reasoning: Permission to appeal was refused. The applicant submitted to the Full Court that he was denied natural justice because he was not provided with a copy of the transcript from the Magistrates’ Court hearing, and questioned the ‘officiality’ of the transcript on which Kelly J had relied. He also questioned the behavior of members of Police Prosecutions in relation to their conduct with the transcript. The appeal was dismissed – the Court held that the applicant did not identify how the missing transcript caused prejudice. The differences in the arguments in this appeal compared to Groom v Police (No 3) were stark. It is likely that the applicant’s ‘ongoing and deeply felt grievance against his former partner’ were the cause of the continuing appeals rather than any legal error.

  • R v Barnes [2014] SASCFC 79 (18 July 2014) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravated assault causing harm’ – ‘Aggravating factor’ – ‘Damaging property’ – ‘Deterrence’ – ‘Exposing a child’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Aggravated assault causing harm (two counts) – Circumstance of aggravation: that the victim was the defendant’s domestic partner.

    Appeal type: Appeal against sentence.

    Facts: The defendant discovered messages from his cousin to his de facto partner on her phone. After waking her up at 3am to question her about these messages, he hit her on the left side of the head before he gave her time to explain. This caused bleeding. He then pinned her down after she tried to break free. Their son, who was sleeping in the same room, witnessed the defendant hitting the complainant. A similar incident occurred the following evening. The defendant punched her to the right of the face with a closed fist and hit her in the right eye. He tried to strangle the complainant who could still breathe so she pretended to pass out. He held up her phone, put it on a coffee table and stomped on it which caused the phone and the table to break. After carrying their son towards his bedroom, he kicked her on the lower back despite her begging him not to hit her again. His criminal history included many driving offences as well as dishonesty and drug offences. He was sentenced to 18 months’ imprisonment for each count to be served cumulatively, with a non-parole period of 18 months. The judge stated he reduced the sentence by 25% on account of the guilty plea.

    Issue/s:

    1. Whether the sentences were manifestly excessive.
    2. Whether the sentences should have been made concurrent.
    3. Whether the sentence should have been suspended.

    Decision and Reasoning: The appeal was allowed in respect of concurrency.

    1. Gray J (with whom Peek and Stanley JJ agreed) firstly noted that the offences were unprovoked. The defendant was woken from sleep and defenceless. The Court then acknowledged the various mitigating factors, including the defendant taking steps towards rehabilitation and the fact that he had formed a new relationship with no evidence of domestic violence. However, in applying the authorities which indicate the seriousness of domestic violence and the need for strong personal and general deterrence and noting the defendant’s long criminal history of defying court orders, the Court held that a head sentence of 18 months’ imprisonment for each offence was open. See in particular from [17] – [22] for a summary of the relevant authorities.
    2. The Court noted that when there are two truly separate occurrences of criminal conduct, cumulative sentences are likely to be appropriate. When a number of offences form a course of criminal conduct, concurrent sentences are likely to be appropriate. As such, the Court held that the sentence should have included some element of concurrency because the offending was, in substance, a course of conduct separated by a short period of time. Partial concurrency of 6 months was appropriate. As such, the 18 month sentence for the second count was made concurrent for 6 months, so that the total effective sentence became 2 years and 6 months.
    3. This argument was rejected. It was within the discretion of the trial judge to not suspend the sentence notwithstanding the applicable mitigating factors. The offending was extremely serious, cowardly and brutal. Furthermore, it partly took place in the presence of a child, who became distressed on the second occasion.
  • R v Nedza [2013] SASCFC 142 (18 December 2013) – Supreme Court of South Australia – Full Court
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravating factor’ – ‘Attempting to dissuade a witness’ – ‘Breach of bail’ – ‘Breach of restraining order’ – ‘Concurrency’ – ‘Creating risk of harm’ – ‘Deterrence’ – ‘Double punishment’ – ‘Exposing a child’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Totality

    Charge/s: Rape (two counts), creating a risk of harm, attempting to dissuade a witness, breach of bail, breach of restraining order.

    Appeal Type: Application for permission to appeal against sentence.

    Facts: The respondent attended the home of his former partner and then proceeded to threaten her with a knife, assault her multiple times, commit two acts of anal rape, threaten her daughter and parents and caused her to swallow petrol. He had possession of a cigarette lighter and threatened to set her alight. He also pressed the knife against their sleeping baby’s cheek. The respondent then, through his sister offered to pay the complainant money if she dropped the charges. All of the conduct was in breach of bail and a domestic violence restraining order. The respondent’s criminal history included multiple instances of prior violent offences committed against the complainant and her mother which demonstrate a pattern of domestic violence. The respondent pleaded guilty to all charges and was sentenced to a total term of imprisonment of 10 years with a non-parole period of 5 years and six months, imposed concurrently with a sentence of 6 months’ imprisonment for different offences.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: Permission to appeal was granted and the respondent was re-sentenced to 15 years’ imprisonment with a non-parole period of 10 years. The Crown submitted that the sentence failed to reflect the seriousness of the offending and the need for deterrence (personal and general). Gray J (with whom Stanley J agreed) agreed with this argument and noted the offending involved various aggravating factors including that it was committed in breach of bail and the restraining order, the presence of children, the use of a knife and the putting of a knife on the head of a sleeping baby. His Honour concluded that the sentencing judge did not give sufficient consideration to these mitigating factors.

    See in particular at [46] – ‘In seeking and obtaining a restraining order against the defendant, the complainant had sought the law’s protection against violence inflicted by her former partner, the defendant. Despite this and in breach of that restraining order, the complainant was again the victim of violent offending of a most serious nature. The restraining order ought to have demonstrated to the defendant in the clearest terms the seriousness with which domestic violence is regarded both by the courts and by wider society. The fact that the offending occurred in breach of that order is a serious matter of aggravation and a significant factor in my conclusion that the sentence imposed by the Judge was manifestly inadequate.’

    Nicholson J also upheld the appeal and made the same orders but made some additional comments regarding concurrency and double punishment in sentencing. His Honour noted that it was appropriate to deal with the breaches of bail and restraining orders (both summary offences) together with the more serious offences. However, it was important to avoid any double punishment in doing so, especially when the more serious offences were ‘aggravated by and assumed colour and context from’ (see at [102]) the summary breach offences. The trial judge ordered separate sentences and made them partially or wholly concurrent. However, ‘the success of this approach depends upon being able to notionally but accurately separate out that component of the sentence nominated for the two summary offences which represents the aggravating feature with respect to the principal offences. Only by being able to do this can a sentencing Judge accurately identify the extent to which, if at all, partial or full concurrency ought to be ordered. Adopting the approach of sentencing separately for the two summary offences where those offences also aggravated the principal offences enhances the risk of an overall under-punishment or over (double) punishment (see at [103])’ – (see further at [105]). His Honour concluded that in this case, the best approach was to impose a single sentence for all offences as opposed to ordering individual sentences with partial and whole concurrency periods. Concurrency and totality however still should not be overlooked when employing that approach.

  • R v M, AG [2013] SASCFC 39 (24 May 2013) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Intervention order’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charges: Aggravated serious criminal trespass in a place of residence x 1; Rape x 5; Theft x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The defendant was the victim’s (M) former partner ([1]). The defendant had been arrested and granted bail on multiple occasions for offences committed against M ([6]-[10]). The present offences occurred when the defendant attended M’s home while on bail. He pushed her into the house, leaving their baby in the car. He took a sledgehammer that M left inside her house for her own protection. He threatened to rape her with it, and then proceeded to force her to perform fellatio on him, vaginally and anally raped her, and forced the hammer of the sledgehammer into her vagina ([12]).

    The defendant initially pleaded not guilty and provided an alibi notice, but after the prosecution presented him with evidence disproving the alibi notice, the defendant pleaded guilty ([15]). The defendant was sentenced to 7 years’ imprisonment with a non-parole period of 4 years. The judge declined to make an intervention order ([2]).

    Issues: Whether the sentence was manifestly inadequate and whether the judge erred in failing to make an intervention order.

    Decision and Reasoning: The appeal was allowed, and the sentence was almost doubled to 13 years’ imprisonment with a non-parole period of 9 years ([55]). The Court also imposed an intervention order with the sentence ([64]).

    Sulan J (Vanstone and Peek JJ agreeing) held that the sentencing judge appeared to have overlooked the brutality and seriousness of the offending and placed too much weight on the appellant's personal circumstances ([45]-[46]). His Honour said that ‘personal and general deterrence must take precedence over the personal circumstances of the defendant’ ([46]).

    The offences were serious because they occurred in the victim’s own home ([29]), the defendant had a criminal history that suggested a disregard for the law ([34]) and the terrifying nature of the weapon used ([41]). The pleas of guilty did not demonstrate genuine contrition, coming only after his alibi evidence had been disproved ([47]). The fact that the defendant and victim were previously in a relationship was not a mitigating factor ([42]).

  • R v Maiolo (No 2) [2013] SASCFC 36 (16 May 2013) – Supreme Court of South Australia (Full Court)
    Directions and warnings for/to jury’ – ‘Evidence of discreditable conduct’ – ‘Evidence of initial complaint’ – ‘Indecent assault’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse’ – ‘Unlawful sexual intercourse

    Charge/s: Indecent assault (five counts), Unlawful sexual intercourse (four counts).

    Appeal Type: Appeal against conviction.

    Facts: Three of the complainants were sisters. The fourth complainant was the appellant’s daughter. The appellant’s partner was the elder sister of the three complainants but was not a complainant.

    Issue/s: Some of the issues concerned -

    1. Whether the evidence of one of the sisters established an initial complainant within the meaning of s 34M(6) of the Evidence Act 1929.
    2. Whether evidence of previous ‘uncharged acts’ constituted relationship evidence, and whether the trial judge correctly directed the jury in relation to the permissible use of such evidence.

    Decision and Reasoning: The appeal was upheld.

    1. At trial, there was evidence that one of the sisters had a conversation with police and a counsellor regarding allegations of sexual misbehaviour by the appellant. The content of these conversations were unclear and it was not clear whether the sister was referring to sexual offending against herself or other persons. The trial judge directed the jury to the effect that they could use this evidence to assess (and possibly bolster) her evidence as well as the evidence of the other complainants. This was an error of law – the complaint was not sufficiently clear. The complaint did not make clear who the subject of the offending was. It was also unclear which particular incident it referred to. The convictions were set aside.
    2. Evidence of prior ‘uncharged acts’ were admitted under s 34P of the Evidence Act 1929 as relationship evidence. See at [50]-[52] where Peek J, (with whom Kourakis CJ and Stanley J agreed) outlined the operation of s 34P in its common law context. Section 34R required the judge to (among other things) explain the purpose for which such evidence can and cannot be used. The trial judge, in her directions to the jury, referred to the evidence in question throwing light on the ‘nature of the relationship’ or providing ‘context’ (see at [110]). She did not elaborate further on the purpose of the evidence. Peek J found that these directions were deficient. See at [111] - ‘With respect, the use of vague words such as “context” or “relationship” without specific elaboration and guidance to the jury was rightly criticised by Doyle CJ in R v Nieterink [1999] SASC 560 where his Honour made the important point that while evidence of uncharged acts may be admissible under heads of relevance which tend to recur in various cases that come before the courts, it is crucial that the Judge, first, positively determines that the particular evidence of discreditable conduct does satisfy a head of relevance in the particular case and, second, gives very clear directions as to how such evidence may, and may not, be used.’ See also at [54]-[57], where his Honour commented on the construction of s 34P and specifically how to determine whether the probative value of the evidence substantially outweighs its potentially prejudicial effect on the accused.
  • R v Fleming [2011] SASCFC 41 (10 May 2011) – Supreme Court of South Australia (Full Court)
    Evidence’ – ‘Evidence of domestic violence inadvertently led’ – ‘Persistent sexual exploitation’ – ‘Propensity evidence’ – ‘Sexual and reproductive abuse

    Charge/s: Persistent sexual exploitation.

    Appeal type: Appeal against conviction.

    Facts: The appellant was convicted by a jury of persistent exploitation of a five-and-a-half-year-old girl. The prosecution alleged that the appellant had been in a relationship with the girl’s mother and that he committed at least more than one act of sexual exploitation. At trial, evidence was inadvertently admitted that the complainant was seeing a domestic violence counsellor. Further evidence about the appellant’s aggressive and sometimes violent behaviour was also put before the Court. Following a question from the jury during deliberations, the judge directed the jury to ignore all of the evidence relating to the domestic violence counsellor and the appellant’s aggressive behaviour because it was not relevant to whether the appellant had committed the offences.

    Issue/s: Whether the judge should have discharged the jury after the evidence of alleged domestic violence by the appellant was inadvertently led. Alternatively, whether the directions given by the trial judge when he refused to discharge the jury were inadequate.

    Decision and Reasoning: David J (Kourakis J and Sulan J concurring) dismissed the appeal. David J firstly noted at [23] that, ‘in cases involving allegations of sexual impropriety in domestic situations evidence of extraneous violence is often allowed for many reasons. Such evidence is often relevant to the question of the relationship between the parties or providing a reason or reasons as to why an alleged victim may not complain.’ This did not apply in this case, as the prosecution did not seek to introduce the evidence. Rather, it came out inadvertently. While David J was concerned that the judge’s direction could have given the jury an impression that there was some ‘sinister impermissible material’ (see at [31]) that had not been introduced, his directions regarding the irrelevance of the evidence were clear and he correctly warned against propensity reasoning. As such, while the situation was not ideal, it did not amount to a miscarriage of justice.

  • R v Runjanjic and Kontinnen (1991) 53 A Crim R 362; (1992) 56 SASR 114; [1991] SASC 2951 (28 June 1991) – Supreme Court of South Australia (Full Court)
    Battered woman syndrome’ – ‘Expert evidence - psychologist’ – ‘False imprisonment’ – ‘Grievous bodily harm

    Charge/s: False imprisonment, grievous bodily harm.

    Appeal Type: Appeal against conviction.

    Facts: The two female appellants were in a relationship with a man named Hill. There was a consistent pattern of domineering and violent conduct by Hill towards both appellants. The appellants were part of a plan to help Hill forcibly confine the complainant and cause her injury. At trial, they sought to admit expert evidence of ‘battered woman syndrome’ to support a claim of duress. The trial judge ruled that the evidence was inadmissible on the ground that the test for duress was objective and expert evidence of the state of mind of the appellants was therefore irrelevant.

    Issue/s: Whether the expert evidence of battered woman syndrome ought to have been admissible to support a claim of duress.

    Decision and Reasoning: King CJ (with whom Bollen and Legoe JJ agreed) held that the evidence ought to have been admissible and a re-trial was ordered. In reaching this decision, King CJ first held that the trial judge’s reason did not provide a sound basis for excluding the evidence. It ignored the subjective aspect of the test for duress and it also misunderstood the main thrust of the proffered evidence. While the expert might have been in a position to comment on the state of mind of the appellants, the primary thrust of such evidence was to establish a pattern of responses commonly exhibited by battered women. At [23]:

    ‘The proffered evidence is concerned not so much with the particular responses of these appellants as with what would be expected of women generally, that is to say women of reasonable firmness, who should find themselves in a domestic situation such as that in which the appellants were. It is designed to assist the court in assessing whether women of reasonable firmness would succumb to the pressure to participate in the offences. It also serves to explain why even a woman of reasonable firmness would not escape the situation rather than participate in criminal activity. As such it is relevant’.

    Second, King CJ considered whether expert evidence of battered woman syndrome met the essential pre-requisite that it had been accepted by experts in the field of psychology or psychiatry as a scientifically accepted facet of psychology. Following significant consideration of scientific literature, at [24] and [26], King CJ held that the evidence was admissible:

    ‘It is not sufficient, in order to justify the admission of expert evidence of the battered woman syndrome, as was argued by counsel for the appellant, that the ordinary juror would have no experience of the situation of a battered woman. Jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience. Much conduct which occupies the attention of the criminal courts occurs in the criminal underworld, or in sordid conditions and situations, of which jurors would generally have no experience. It is not considered to be beyond the capacity of juries, or of the Court if it is the trier of the facts, to judge of the reactions and behaviour of people in those situations. Expert evidence of how life in criminal or sordid conditions might affect a person's responses to situations, would not be admitted.

    ‘This is an area in which the courts must move with great caution. The admission of expert evidence of patterns of behaviour of normal human beings, even in abnormal situations or relations, is fraught with danger for the integrity of the trial process. The risk that, by degrees, trials, especially criminal trials, will become battle grounds for experts and that the capacity of juries and courts to discharge their fact-finding functions will be thereby impaired is to be taken seriously. I have considered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations. In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors. It seems to me that a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained’.