Police v Peel [2021] SASCFC 7 (5 February 2021) – South Australia Supreme Court (Full Court)
‘Breach of suspended sentence bond’ – ‘Breach protection order’ – ‘Prosecution appeal against decision to allow appeal’ – ‘Protection order’
Charges: Several offences including contraventions of an intervention order and breach of suspended sentence bond.
Proceedings: Prosecution appeal against Supreme Court decision to allow respondent’s appeal against breach of suspended sentence bond: Peel v Police [2020] SASC 48 (7 April 2020).
Facts: The male respondent was convicted of several offences including contraventions of an intervention order protecting his female former partner. He was sentenced to 4 months and 15 days imprisonment, partially suspended on a good behaviour bond. The respondent breached the bond by further contravening the intervention order. The Magistrate declined to excuse the breach and revoked the suspension. A single judge allowed the respondent’s appeal.
Grounds of appeal: Whether “proper grounds” existed for excusing a failure to comply with a suspended sentence bond.
Held: The single judge below erred, but there was no utility granting permission to appeal or allowing the appeal in this case as the respondent had served the unexpired portion of the sentence.
Consideration of whether there are “proper grounds” involves “consideration of the nature of the breach and the circumstances in which it was committed, and of any disproportionality between the nature and extent of the breach and the severity of the consequence of revoking the suspension and requiring the original sentence to be served” (at [38]). Any history of similar offending may be relevant “on the basis that it informs a full understanding of both the seriousness of the breach offending, and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and hence the proportionality or otherwise of revoking the suspension of that sentence”(at [44]).
The Magistrate was entitled to have regard to the respondent’s history of similar offending, which was a “relevant, and indeed quite significant consideration” in the context of the case, and the judge below erred in concluding otherwise (at [46]).
Warne v The Queen [2020] SASCFC 124 (21 December 2020) – South Australian Supreme Court (Full Court)
‘Appeal against re-sentence’ – ‘Appeal against sentence’ – ‘Coercive control’ – ‘Misuse of alcohol or drugs’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Self-defence’ – ‘Separation’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’
Charges: Basic assault x 1; Aggravated assault causing harm x 2; Possession of a Class A firearm without a licence x 1; Aggravated threatening life x 1; Aggravated assault x 3.
Proceedings: Appeal against re-sentence (re-sentence was imposed following a successful appeal against conviction).
Facts: The offences occurred in connection with a domestic relationship between the appellant man and his female former partner. The appellant was convicted of 8 charges following a trial by jury. He was sentenced to 4 years and 5 months imprisonment, with a non-parole period of 3 years. The appellant successfully appealed his conviction on one count of aggravated assault causing harm. The re-sentencing arising from the appeal against conviction was undertaken by a different judge, as the first sentencing judge had retired. The re-sentencing judge imposed a sentence of 4 years and 9 months imprisonment, with a non-parole period of 3 years and 4 months.
Grounds of appeal:
1.
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.
The re-sentencing judge’s starting point was too great.
3.
The re-sentencing judge erred in finding that home detention was not appropriate in all the circumstances.
4.
The re-sentence was manifestly excessive.
Held: The appeal was allowed. Based on the submissions made to the re-sentencing judge and the content of the sentencing remarks made, Hughes J (with Peek and Stanley JJ agreeing) inferred that the re-sentencing judge overlooked the approach to be taken when imposing subsequent sentences for the same offending identified in R v Baltensperger [2004] SASC 392. In re-sentencing, the judge is “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” (at [41]). This inference gained further support by the lack of significant disparity between the re-sentence and the original sentence (at [42]).
After considering the relevant circumstances, Hughes J held that the original sentence was not manifestly excessive (at [48]-[56]). Hughes J (Peek and Stanley JJ agreeing) noted a controlling course of conduct:
[51] 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.
However, the circumstances concerning the count of aggravated assault causing harm, which was successful on appeal, were to be properly viewed as separate from the other acts as charged, thereby not attracting principles of concurrency. This was therefore the basis for imposing a sentence lower than the original sentence namely, 4 years’ imprisonment with a non-parole period of 2 years and 8 months (at [57]-[59]).
Warne v The Queen [2020] SASCFC 12 (26 February 2020) – South Australia Supreme Court (Full Court)
‘Appeal against conviction’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Self-defence’ – ‘Separation’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’
Charges: Assault x 1; Aggravated assault x 3; Aggravated assault causing harm x 2; Possessing a firearm without a licence x 1; Aggravated threatening life x 1.
Proceedings: Appeal against conviction.
Facts: The complainant in respect of each of the charges of violent offending was the male appellant’s then female partner. The assault charges were aggravated by reason that they were alleged to have occurred in contravention of an Intervention Order.
Grounds of appeal:
1.
The trial judge erred in failing to direct the jury as to their obligations to decide the case only on the evidence, to not discuss the case with persons other than their fellow jurors, to not make their own enquiries, and to bring to the trial judge’s attention any departure from the above by any member of the jury.
2.
The trial judge erred in failing to direct the jury as to self-defence.
3.
The trial judge’s directions lacked balance to the extent that they resulted in a miscarriage of justice.
4.
The trial judge erred in failing to adequately direct the jury in relation to the potential implications for the complainant’s credit of the timing of the photographs purportedly showing the injuries alleged to have been sustained during the course of the conduct the subject of count 1.
Held: Permission to appeal in respect of grounds 1 and 2, and allowing the appeal on ground 2, but only to the extent of setting aside the conviction on count 2 (aggravated assault causing harm) and ordering a retrial on that count, and otherwise dismissing the appeal.
Ground 1: The trial judge ought to have given post-empanelment directions to the effect contended for by the appellant. Nevertheless, there was no miscarriage of justice. This was not a case where there had been media publicity and the appellant did not identify any information of significance that might have been available through internet searching. It was speculative to suggest that the jury’s deliberations were infected by extraneous information.
Ground 2: There was a sufficient evidential basis to require that the trial judge leave self-defence to the jury in respect of the charge the subject of count 2 as the alleged assault was immediately preceded by verbal and physical aggressive conduct by the complainant. The trial judge’s directions in this respect were inadequate, falling short of an accurate and clear articulation of the defence.
However, the court did not accept that the evidence as to the generally volatile nature of the parties’ relationship, and instances of aggressive behaviour by the complainant on other occasions (including her use of an axe in the context of the incident leading to count 2), provided a sufficient evidential foundation for self-defence in respect of the balance of the counts of violent offending with which the appellant was charged.
The appeal in respect of ground 2 was allowed, but only to the extent of setting aside the conviction on count 2.
Application for permission to appeal on grounds 3 and 4 was dismissed. The appellant did not demonstrate any lack of balance in the trial judge’s summing up.
Subsequent appeal against re-sentence was allowed: Warne v The Queen [2020] SASCFC 124 (21 December 2020).
SPC v The Queen [2020] SASCFC 43 (28 May 2020) – South Australia Supreme Court (Full Court)
‘Children’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse’
Charges: 8 counts, including aggravated causing harm with intent to cause harm, aggravated threatening life, rape
Case type: Appeal against conviction
Facts: The appellant an was convicted of 2 counts of aggravated causing harm with intent to cause harm, 3 counts of aggravated threatening life and 2 counts of rape. He was acquitted of a charge of aggravated cause harm. The victim was the appellant’s wife, who had migrated from China in 2009, and with whom the appellant had children. The victim testified that their relationship was marred by verbal, physical and sexual abuse, and recounted an incident of violence and rape which had preceded the charged counts (relationship evidence).
Grounds:
•
The judge failed to adequately direct the jury on the use of evidence of the victim’s distress when she reported the offending to a police officer.
•
The judge failed to properly direct the jury on the use of the evidence of the violent relationship on the element of consent on the rape charges.
•
The verdict on the last rape offence (Count 8) was unreasonable because the evidence could not exclude the possibility that the appellant failed to appreciate that the victim was not consenting.
Held: Kourakis CJ (Nicholson and Bampton JJ agreeing) dismissed the appeal.
As to ground 1, the appellant argued that the judge failed to give any directions as to the proper use of the evidence of the victim’s distress when she attended at the police station. It was submitted that the judge should have directed the jury that (1) because of the passage of time and the significance of the reconciliation contended for by the appellant, the distress was not relevant; and (2) if they were to use the distress as circumstantial evidence of consistency with respect to the alleged rape, they would need to be satisfied that distress was not an emotional reaction to the victim’s decision to leave the appellant ([36]). The Court, however, dismissed this ground for 4 reasons. First, it was not put by the prosecutor, nor left to the jury by the judge, that the victim’s distress was corroborative or supportive of her testimony ([44]). Second, the evidence was admissible due to the close temporal connection to the last rape offence, the degree of distress and the circumstances in which the victim abandoned the course in which she had enrolled to report the appellant’s violence against her. The distress was also proximate to the rape the victim alleged occurred the night before ([45]). Third, the alternative explanations for the victim’s distress proposed on appeal were unrealistic ([46]). Fourth, counsel for the appellant at trial consented to the judge’s proposal not to give any directions on the evidence of distress ([47]).
As to ground 2, the appellant’s complaint primarily related to the judge’s failure to give specific directions on how the relationship evidence was relevant to prove the mental element on 2 of the rape counts ([50]). The Court found that the the judge’s directions on the use of the relationship evidence in considering whether the objective elements of the offence had been established were sound ([56]). The judge did not err by omission in not directing the jury to ignore the relationship evidence on the question of the appellant’s appreciation of whether or not the victim was consenting to sexual intercourse on the rape charges. Neither counsel referred to the relationship evidence on that issue. It was common ground that, notwithstanding their violent relationship, consensual sexual intercourse was a feature of their relationship. The proper use of the relationship evidence on the subjective element of the rape charges was, therefore, not a live issue at trial.
The verdict on count 8 was not unreasonable. It was sufficiently supported by the victim’s evidence, and there was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of her testimony ([64]).
R v Roberts [2019] SASCFC 94 (1 August 2019) – South Australia Supreme Court (Full Court) [Summary prepared by Magistrates’ Associates of the Adelaide Magistrates Court]
‘Admissibility’ – ‘Assault’ – ‘Evidence’ – ‘Propensity’ – ‘Relevancy’
Charges: Causing harm with intent to cause harm
Appeal type: Appeal against conviction
Facts: The defendant was convicted by jury of causing harm with intent to cause harm to the complainant who he was in a sexual relationship with. The defendant, while intoxicated, grabbed her and dragged her out of the house, pushed her on to the footpath and kicked her body causing various injuries. The appellant’s brothers Stephen and Joe were present at the house. The complainant said that before living with the defendant, a former partner, Ray, had also been violent to her. The defence put to the complainant in cross-examination that it was Ray not the appellant who assaulted the complainant. Ray was deceased by the time of the trial. The complainant gave:
•
General evidence that the appellant was ‘rough to [her] nearly everyday [they] were together’ and ‘slapped’ her around; and
•
Specific evidence that on 14 February 2017 the appellant was angry at her and twisted and broken her arm for which the injury required surgery. The complainant lied to medical staff that she had fallen off a deck.
A police officer who attended the scene gave evidence of two tranches of the appellant’s brother, Stephen’s, statements and conduct:
•
The first tranche was that Stephen ‘loudly told police to leave the property and shut the front door’.
•
The second was that when told the appellant was arrested for assaulting the complainant, Stephen stated ‘If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way’.
Grounds of Appeal:
•
Ground 1: Did the Trial Judge err in admitting the specific evidence as to the appellant having broken the arm of the complainant on 14 February 2017, and in doing so cause a miscarriage of justice?
•
Ground 2: Did the Trial Judge err at law in admitting evidence of words spoken out of Court by a person not called as a witness (Stephen Roberts), and in doing so cause a miscarriage of justice?
Held:
•
Ground 1: Peek J and Hughes J allowing the appeal, Kourakis CJ dismissing the appeal.
•
Ground 2: Peek J allowing the appeal, Kourakis CJ and Hughes J concurring.
Reasons:
Ground 1 – Kourakis CJ (dismissing)
•
‘The admissibility of evidence of a violent relationship…between a perpetrator and a victim involved in a domestic relationship has long been held to be admissible on a charge of a violent criminal offence’ citing R v Olasiuki (1973) 6 SASR 255 at 263-264 and R v Hissey at [2] (1973) 6 SASR 280.
•
On the admission of the evidence relating to the breaking of the complainant’s wrist by the appellant, the jury ‘could not reason in the appellant’s favour that he was unlikely to be the complainant’s assailant because he was in a romantic relationship with her’ at [4].
•
‘The risk of misuse of discreditable conduct evidence is greatest when it is admitted as propensity evidence. It is more difficult to compartmentalise specific propensity reasoning from bad person reasoning’ at [9]
•
The probative value of the evidence ‘substantially outweighed any prejudicial effect’ as ‘it showed that the appellant’s romantic relationship with the appellant did not inhibit him from bashing and slapping her around and, importantly, causing her serious bodily harm three weeks earlier’ and as such was admissible under s 34P(2)(a) at [10].
•
The evidence of the broken arm assault ‘did not materially add to the prejudicial effect of the evidence that the appellant bashed and slapped around the complainant’ at [10].
•
‘Prejudice is not necessarily accumulated by the arithmetic addition of the occasions of discreditable conduct. The prejudice lies in the error of reasoning’ at [10].
Ground 1 – Peek J (allowing) (Hughes J concurring)
•
In relation to s 34P(2)(a) prosecution often contend in domestic violence matters that there is a ‘permitted use’ under s 34P(2) for the admission of evidence of prior conduct at [74].
•
The only ‘permitted use’ here is said to be that such evidence is relevant to the alleged assault on the basis that ‘the assault did not come out of the blue’ (the out of the blue argument) at [74].
•
The out of the blue argument is often linked to and strengthened by delays in reporting to police due to fears of repercussions and situations where the existence of a violent relationship is established or confirmed by independent evidence at [76].
•
‘If only evidence of the specific allegation is led…it is not unlikely that members of a jury may gain the impression that the assault charged involves an incongruous, unprovoked and unexplained occurrence’ at [75].
•
Tection 34P(2)(a) requires that separate assessments must be made as to both ‘any probative value’ and ‘any prejudicial effect’ of the evidence to determine whether the prosecution have ‘demonstrated that the former substantially outweighs the latter’ at [77].
•
In relation to the probative value: If the 14 February 2017 assault is set aside it may be contended that ‘there is an apparent difference in the evidence of the complainant as between the usual degree of violence (‘rough’ and ‘slapping around’) and ‘the high degree of violence alleged to be involved in the subject assault’ at [79].
•
The out of the blue argument in this matter is narrow. There was no delay in reporting and there is no independent evidence outside of the complainant’s to establish the existence of a violent relationship at [81].
•
In relation to the prejudicial effect: although prosecution eschewed any reliance on s 34P(2)(b), the question arises under s 34P(2)(a) and s 34P(3) ‘as to the extent of the risk that the jury might adopt a process of propensity reasoning due to the doubling of the number of allegations of a high level of violence in circumstances where the allegations appeared superficially similar’ at [82].
•
The prosecution did not call medical evidence in relation to the 14 February 2017 assault and in doing so denied the appellant ‘the ability to cross-examine as to whether such injuries where more consistent with her original history of falling from a deck than her later version of an assault’ at [82].
•
Under s 34P(3) the Judge is ‘specifically required’ to determine whether the permissible use can be kept ‘sufficiently separate and distinct from the impermissible use’ at [83].
•
‘It is quite evident from the transcript that the Judge did not undertake a sufficient analysis of the application of s 34P and did not refer to s 34P(3) at all’ at [83].
Ground 2 - Peek J (allowing) (Kourakis CJ and Hughes J concurring)
•
The prosecution ‘attempted to justify the admission of both tranches of Parkinson’s evidence by citing Walton v The Queen (1989) 166 CLR 283 and R v Hendrie (1985) 37 SASR 581 that stand for the proposition that ‘in some circumstances a person’s state of mind may be proved by contemporaneous acts or statements made by that person’ at [27].
•
Although the decisions in Walton and Hendrie are ‘unexceptionable’, ‘…the danger of proliferation of tendering evidence of statements or actions of persons not called as witnesses must be guarded against’ at [36].
•
Evidence of this nature should only be received ‘if it is of direct and immediate relevance to an issue which arises at trial’ (R v Blastland [1986] AC 41, 53 and R v Szach (1980) 23 SASR 504) at [47].
•
The trial judge admitted the evidence of Parkinson in this case to rebut the suggestion put to the complainant in cross-examination that she was assaulted by someone else other than the complainant at [52].
•
While it was open to the prosecution to call further evidence that it was not Ray that has assaulted the complainant, this evidence had to be admissible at [58].
•
In relation to the first tranche: Stephen’s ‘less than cordial welcome of police arriving at his home was entirely consistent with personal beliefs or feelings he holds about police which could be referable to any number of reasons or previous experiences’ and not necessarily connected to the crime at [60].
•
The second tranche of evidence the prosecution’s position is that Stephen’s statement was’ "Consistent" with knowledge that the appellant did consult the complainant’. However, there was in fact no evidence that Stephen knew who assaulted the complainant
•
The evidence as to Stephen Roberts’ statement and conduct was ‘nebulous and highly speculative’ as distinct from being directly relevant to trial at [60].
•
It ‘is simply not the type of clear and unequivocal "state of mind" evidence’ referred to in Hendrie and Walton. There was no evidence that Stephen knew who assaulted the complainant at [63].
•
The prosecution was ‘simply not permitted to tender evidence of an action or statement of a person who they were not prepared to call, on some sort of ‘prophylactic’ basis that the jury might consider that the words were consistent with a prosecution case theory’ at [64].
Appendix 1: 34P–Evidence of discreditable conduct
•
•
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)–
◦
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
◦
(b) is inadmissible for that purpose (impermissible use); and
◦
(c) subject to subsection (2), is inadmissible for any other purpose.
•
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if–
◦
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
◦
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue–the evidence has strong probative value having regard to the particular issue or issues arising at trial.
•
(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
•
(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
•
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
R v Wilton [2019] SASCFC 65 (13 June 2019) – South Australia Supreme Court (Full Court)
‘Adequacy of directions to jury’ – ‘Confessions and admissions’ – ‘Miscarriage of justice’ – ‘Property offences’
Charges: 1x aggravated serious criminal trespass in a place of residence, 1x theft.
Appeal type: appeal against conviction of above charges.
Facts: The appellant and the complainant were in a relationship and two children were born of that relationship. The appellant and the complainant had separated and there were family court orders allowing the appellant fortnightly access to the children and restraining him from being within 50 metres of the complainant’s house. The appellant was found in the complainant’s house in possession of various items belonging to the complainant. Upon the police’s arrival, the appellant stated, “I fucked up” and begged the complainant not to press charges.
Issues: The appellant advanced two grounds of appeal; both grounds were considered together since they were intrinsically linked in both time and context ([42]). The appellant argued that the trial Judge failed to give adequate directions to the jury as to the use that could be made of the purported confessional statement “I fucked up” and the evidence of the appellant begging not to be charged ([3]).
Decision and reasoning: appeal dismissed.
To illustrate that the trial judge’s directions were not deficient, Parker J first made two material observations of the trial proceedings. The first was that the trial Judge reminded the jury of the defence’s submission that the appellant’s remarks were potentially equivocal and couldn’t be regarded as determinative ([47]). The second was that the trial Judge expressly stated that the use that could be made of the appellant’s behaviour was entirely within the jury’s discretion; it could be used for or against him, rejected in whole or in part, or attributed with different degrees of significance ([48]).
His Honour then referred to the observations of the High Court in RPS v The Queen to reflect the absence of any error in the trial Judge’s directions. In the extract, the High Court stated that the facts are to be determined by the jury and the trial Judge may comment on the facts but often the safest course for a trial Judge will be to make no comment on the facts beyond reminding the jury of the arguments of counsel ([49]). In addition, for the same purpose, his Honour referred to similar observations made in R v Golubovic where it was pointed out that in trials such as the one at hand, there may be little need for the judge to identify the issue or explain the cases of the parties ([50]).
Collectively, these observations are said to point towards a key principle relevant to the appeal, that is, when considering the adequacy of the Judge’s directions to the jury, it is important that the factual issues are few and not complex ([49]-[51]).
For these reasons, amongst others, his Honour deemed that it was unnecessary for the Judge to provide more elaborate directions in the terms suggested by the appellant (see [3]). The directions given by the Judge were viewed as sufficient to ensure the jury wasn’t confused about the issues that needed to be determined ([53]).
Police v Heritage [2019] SASCFC 60 (31 May 2019) – South Australia Supreme Court (Full Court)
‘Activation of suspended sentence’ – ‘Breach of conditions of good behaviour bond’ – ‘Sentence’
Charge: Aggravated assault.
Appeal type: Appeal against Magistrate’s sentence (excusal of breach of bond).
Facts: In 2016 the respondent assaulted his partner and was sentenced to imprisonment for 9 months, suspended upon entering into a good behaviour bond for 18 months. In 2017 the respondent breached his good behaviour bond by committing a further assault on his partner. The Magistrate excused the breach of bond, extended the bond by 6 months, and sentenced the respondent to imprisonment for 28 days for the fresh offending suspended upon the respondent entering into a further good behaviour bond for 18 months. The Police appealed against the excusal of the breach of bond ‘on the ground that, in excusing the breach, the Magistrate erroneously relied on the respondent’s personal circumstances as opposed to the nature and circumstances of the offending’ at [3].
Appeal dismissed by single Judge. Police sought permission to appeal to Full Court.
Issue: Did the Magistrate erroneously rely upon the respondent’s personal circumstances as opposed to the nature and circumstances of the offending when excusing the breach of bond?
Decision and reasoning: Granting permission to appeal and dismissing the appeal, the Full Court held:
‘The approach by the Magistrate to the finding of proper grounds to refrain from revoking the suspension was erroneous, as was the Magistrate’s conclusion that there were proper grounds to refrain from revoking the suspension’ at [41]. ‘The Judge erred in concluding that the Magistrate did not rely on the respondent’s personal circumstances in deciding to refrain from revoking the suspension’ at [47]. Notwithstanding the error, the appeal should be dismissed in the exercise of the court’s residual discretion, as the respondent has been living a law-abiding life in the community for an extended period of time since being sentenced, and the balance of the original period of suspension of the original sentence and the extended period of the suspension has now expired at [63].
Reasoning - proper grounds:
The police relied upon a series of decisions commencing with Norman v Lovegrove [1986] 40 SASR 266and R v Buckman [1988] 47 SASR 303 in which the Supreme Court held that when determining whether there are proper grounds within the meaning of s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA)—a largely identical provision is now contained in s 114(3) of the Sentencing Act 2017 (SA)—upon which a breach of bond should be excused, those proper grounds must relate to the ‘nature and circumstances of the breaching offence as opposed to the personal circumstances of the defendant’ at [13]. Blue J held in relation to the meaning of the expression proper grounds that ‘it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection 58(3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach’ at [22]. His Honour reasoned that the ‘distinction between circumstances of the offence and personal circumstances is well understood in practice although it is more difficult to define in a priori terms. The circumstances of the offence comprise those circumstances existing at the time of commission of the offence which bear on the culpability of the offender in committing the offence’ at [31].His Honour differentiated between a ‘circumstance of the offence’, for example, an offender suffering a mental impairment which contributed to the committing of the offence, and a ‘personal circumstance’, for example, where ‘it is desirable that a defendant receive treatment for a mental impairment which cannot effectively be provided in prison’ or where hardship is caused to the defendant’s dependant at [31].
His Honour, at [35], cited the Magistrates three reasons for refraining from revoking the suspension:
•
That the respondent needed professional assistance to address his mental health and anger management issues;
•
That the respondent was supporting his partner and 10 month old child who would suffer hardship if the respondent were to be imprisoned; and
•
That the revocation of the suspension of the sentence of imprisonment would be disproportionate and oppressive to the 2017 offending.
His Honour held that reasons 1 and 2 were personal circumstances. While the third reason related to the circumstances of the breach, his Honour held that ‘there was no basis on which it was open to the Magistrate to conclude that activation of the original sentence would be a disproportionate consequence of the 2017 offending’ at [40].
Reasoning – the reasons of the Judge:
The Judge referred ‘to decisions of single Judges of the Court that the Full Court authorities do not preclude a court taking into account personal circumstances’, however, stated that it was not necessary to decide this as the Magistrate did not take into account the respondent’s personal circumstances when deciding to restrain from revoking the suspension’ at [43]. Blue J held the Judge erred in his conclusion that the Magistrate did not rely on the respondent’s personal circumstances in refraining from revoking the suspension.
Reasoning – permission to appeal:
Permission to bring a second appeal by the Crown against sentence by a magistrate ‘will only be granted in rare and exceptional cases. This will ordinarily only be when it is necessary to establish or maintain correct sentencing principles or adequate sentencing standards or where the error is so disproportionate to the seriousness of the crime that it demands correction on appeal’ at [49]. Permission to appeal should be granted ‘having regard to the importance of the maintenance of the correct sentencing principles and the availability of the residual discretion’ at [61]. However, as allowing the appeal would have resulted in the defendant’s imprisonment after he had been living a law-abiding life in the community for a sustained period’ at [62], the Court should dismiss the appeal in the exercise of its residual discretion.
R v Dhir [2019] SASCFC 55 (22 May 2019) – South Australia Supreme Court (Full Court)
‘Misdirection or non-direction’ – ‘Permissible and impermissible use of evidence’ – ‘Sexual and reproductive abuse’
Charges: 1 x digital rape (count 2), 4 x aggravated assault causing harm (counts 1, 3, 4 and 5).
Appeal type: Appeal against conviction of above charges.
Facts: The appellant and complainant were married. The appellant allegedly committed the rape by putting his hand under the complainant’s jeans at a train station platform. The assault (count 3) was alleged to have been committed soon after the rape when the couple was walking home from the train station. The remaining offences were committed in the matrimonial home.
Issues: The appellant appealed against the convictions on seven grounds (see [4]), all of which generally concerned the directions given to the jury by the Judge.
Decision and reasoning: appeal was allowed on grounds 3, 4, 5 and 7 and dismissed on grounds 1, 2 and 6. All convictions ordered on the District Court information were quashed and the matter was remitted for a new trial.
For the purposes of convenience, Kourakis CJ first dealt with the fifth ground of appeal in which the appellant contended the Judge erred in directing the jury to ignore a defence submission concerning the plausibility of the digital rape charge (see [49]-[50]). His Honour accepted this ground of appeal, claiming the Judge withdrew a legitimate and factually compelling submission ([50]) with the likely effect of leading the jury to interpret the Judge’s direction as withdrawing the defence counsel’s broader implausibility submission (of which this particular submission formed an integral part of) from their consideration ([51]).
The first ground of appeal was divided into two complaints; his Honour rejected the first complaint, stating it was unnecessary to draw the distinction in order to comply with s 34R of the Evidence Act 1929 (SA) (see [53]). As to the second complaint, His Honour acknowledges that the Judge ought to have expressly directed the jury in relation to the impermissible use of the discreditable conduct evidence under s 34R(1) of the Evidence Act 1929 (SA). In failing to do this, the Judge was said to have failed to comply with the obligations laid out under s 34R(1). Nonetheless, such an omission did not occasion any miscarriage of justice and the second complaint was therefore rejected ([58]).
His Honour notes the merit of the second ground of appeal in stating that the Judge should have directed the jury as to the limited use that could be made of the alleged admissions ([59]). However, his Honour discerned no miscarriage of justice in this omission on the Judge’s part, particularly in light of the Judge’s cautionary observations ([45]-[46]) and the fact that the complainant’s evidence was proven unreliable in any event ([59]).
The third, fourth and seventh ground of appeal raised a particular issue that was considered through the relevant authorities (see [61]-[75]). Ultimately, his Honour allowed these grounds of appeal in recognising that the Judge placed undue weight to the evidence of distress.
R v Mark [2019] SASCFC 48 (9 May 2019) – South Australia Supreme Court (Full Court)
‘Appeal against sentence’ – ‘Grounds for interference’ – ‘Sentence manifestly excessive’
Charges: 1x aggravated assault, 1x breach of a suspended sentence bond.
Appeal type: appeal against sentence for the above offences.
Facts: the appellant punched his domestic partner in the face. In doing so, the appellant breached the intervention order in place at the time which prohibited the appellant from assaulting, threatening or intimidating his domestic partner. The appellant entered a guilty plea to the assault charge and the matter was transferred to the District Court for sentencing with the breached bond and other matters. An 11-month sentence was imposed for the aggravated assault while the suspended sentence was revoked and a six-month sentence (subject of the good behaviour bond) was ordered to be served cumulatively on the sentence for the aggravated assault.
Issues: the appellant’s grounds of appeal were two-fold. First, the sentence imposed for the aggravated assault was manifestly excessive ([6]). Second, the judge erred in sentencing the appellant on the basis that the offence was committed against a background of previous domestic violence ([6]).
Decision and reasoning: appeal was allowed, sentence imposed by trial Judge was set aside and the appellant was resentenced (see [36]).
His Honour first set out the authority and principles relevant to determining whether to interfere on appeal with a decision on sentence and whether a sentence is manifestly excessive ([17]-[21]).
His Honour rejected the appellant’s submission that the assault was on the lower end of the scale of seriousness. A single punch to the face was deemed serious by his Honour in light of the fatal consequences such an action may have had ([23]-[24]). It’s seriousness was also heightened by the fact it was committed with an intervention order in place at the time which aimed to protect the victim from the assault that occurred ([27]).
Whether the starting point of 18 months for a first offence of violence produced a sentence outside the permissible range for the offending and offender in question was determined in reference to multiple factors. First, the importance of specific and general deterrence in sentencing for offence of domestic violence lent some justification to the sentence imposed ([26]). Second however, the offender’s poor track record of responding to the leniency extended to him by the courts (see [10]) was considered in light of his personal and mitigating circumstances ([28]). Ultimately, notwithstanding the seriousness of the offending, and having regard to the fact that the assault was the appellant’s first offence of violence, his Honour concluded that a starting point of 18 months was too high and outside the permissible range of sentences for this offending and this offender ([31]).
The second ground of appeal was allowed since the factual basis of the judge’s sentence lacked a sufficient foundation on the evidence presented to the court and wasn’t actually conceded by the appellant ([32]).
R v Adamson [2018] SASCFC 114 (11 November 2018) – South Australia Supreme Court (Full Court)
‘Arson’ – ‘Damaging property’ – ‘Evidence’
Charges: Arson x 1.
Appeal type: Appeal against conviction.
Facts: The appellant was found guilty of arson following jury trial. It was alleged that he deliberately lit a fire inside a townhouse in which he and his partner lived until their separation three weeks prior to the fire. His alibi was that he was at a lacrosse club at the time that the fire was lit. The prosecution relied upon a number of items of circumstantial evidence which it argued cumulatively showed the appellant’s guilt beyond a reasonable doubt.
Issues: The appellant appealed his conviction on the basis that the guilty verdict was unreasonable and cannot be supported having regard to the evidence, and in particular in consideration of his alibi. He contended that no reasonable jury could have rejected his alibi as a reasonable possibility.
Decision and reasoning: In considering the grounds of appeal, the Court applied the principle set out M v The Queen [1994] HCA 63, namely, whether, on the totality of the evidence, it would be open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. On a thorough analysis of all the evidence, the Court dismissed the appeal on the basis that:
•
The evidence established that the fire in the townhouse had been deliberately lit. It also established that a few hours prior to the fire being lit, the appellant spoke of burning it down.
•
The strength of the evidence that supported the appellant’s alibi was a matter for the jury, to be considered in light of the other evidence presented in the trial.
•
There was a sufficient basis in the evidence for the jury to reject the appellant’s alibi as a reasonable possibility, and to find beyond reasonable doubt that he deliberately lit the fire.
R v Peet [2018] SASCFC 91 (5 September 2018) – South Australia Supreme Court (Full Court)
‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Sentencing’
Charges: Murder.
Appeal type: Appeal against sentence.
Facts: The circumstances of the offending were that early in the morning, following an argument with the respondent’s partner, during which she slapped, kicked and hit him with a vacuum cleaner pole, the respondent struck her with a crow bar at least six times. The respondent dragged her body to the laundry where he placed a cable tie around her neck and tightened it. The combined effect of the blows and the compression of her neck caused her death. Not long after this occurred the children woke. The respondent made breakfast for them. He then went outside and smoked a cigarette before returning inside. There was a knock at the door. The respondent put the children in their rooms and told them to be quiet. He did not answer the door and the people knocking went away. At some point, and possibly whilst the people were still at the front door, the respondent went back to each child. The respondent restrained the six-year-old with cable ties and placed a sock in her mouth, fixing it in position with packing tape. He placed a cable tie around her neck and tightened it. Her death was caused by the combined effect of suffocation and asphyxiation. The respondent also restrained the five-year-old with cable ties and asphyxiated him. His tongue was bruised suggesting that prior to death he too may have had something placed in his mouth obstructing his airway.
The sentencing Judge sentenced the respondent to life imprisonment with a non-parole period of 30-years to commence on the day the respondent was taken into custody. The sentencing Judge accepted that the respondent was experiencing a degree of dissociation when he killed the children. On appeal, the DPP contended that the 30-year non-parole period was manifestly inadequate, and submitted that the inadequacy was so great, having regard to the gravity of the offending, that the Court should increase the non-parole period to ensure the maintenance of adequate standards of punishment for the offence of murder. The respondent conceded that the non-parole period was manifestly inadequate and that it should be set aside and a new non-parole period fixed.
Issues: Whether the sentence was manifestly inadequate.
Decision and reasoning: The Court took into account the respondent’s personal circumstances ([87]), loss felt by the family ([85]), and the value of human life. At [83]-[84], the Court noted that –
‘A just sentence in the present case must accord due recognition to the human dignity of three victims… It has been said that the value of human life is intrinsic. The murderer denies their victim life and all the potentialities that accompany living which are of inestimable worth. Speaking generally, that denial, that exaction, cost or loss, is magnified where the victim is a child. The younger and more innocent the child the more the murderer repulses us as a community and the more grave or heinous the act of murder because of the value we place on life.’
The punitive, protective and rehabilitative purposes of fixing a non-parole period were also relevant. The punitive purpose in particular reflected the gravity of the offending. The sentencing Judge found that the respondent intended to kill each victim. As King CJ said in R v Stewart (1984) 35 SASR 477, multiple murders fall into the worst category of offending. Therefore, condign punishment was afforded great weight. The Court also noted that the respondent should not be left without hope for spending some time in the community again in the future, as this promotes rehabilitation. The murder was not premeditated in the conventional sense. The murder also occurred in the context of a relationship characterized by domestic violence. The murder was described at [78] as being brutal and the final act cold and lacking in humanity. Citing Munda v Western Australia (2013) 249 CLR 600, ‘A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner’. Although the sentencing Judge found that the respondent suffered a degree of dissociation at the time of the incident, this neither prevented him from forming the intent to kill nor did it prevent him from understanding the nature and quality of his actions. It helped him to depersonalize his two children, but did not prevent him taking action which he considered necessary for the purposes of his own self-preservation ([80]).
The Court found that the determination of a non-parole period in this case could not be reduced to a formula and that the totality principle was applicable to the setting of a non-parole period in relation to a life sentence for murder. The Court allowed the appeal and held that the non-parole period fixed by the sentencing Judge was manifestly inadequate. A non-parole period of 36 years was substituted. Although the respondent was entitled to a discount of up to 10% on the basis of his guilty pleas, to allow the respondent any further reduction would result in a non-parole period unacceptably disproportionate to the gravity of the offending which would vindicate the dignity of the victims ([90]).
R v Hibeljic [2018] SASCFC 35 (11 May 2018) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (Full Court)
*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘Breach of bail’ – ‘Coercive control’ – ‘Contravention of a protection order’ – ‘Damage to property’ – ‘Emotional and psychological abuse’
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) – South Australia Supreme Court (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) – South Australia Supreme Court (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] SASCFC 90 (19 August 2016) – South Australia Supreme Court (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) – South Australia Supreme Court (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’ – ‘Coercive control’ – ‘Economic abuse’ – ‘Financial abuse’ – ‘Following, harassing and monitoring’ – ‘Fresh evidence’ – ‘Isolation’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Threats to children’
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]).
Parker J (Lovell and Nicholson JJ concurring) described the coercive control which the appellant subjected the victim to:
[19] When the victim was threatened or attacked by the appellant she would try to leave their flat, often running into nearby streets and parks and attempting to hide. The appellant would frequently chase her or track her down in order to continue his abuse.
[20] The appellant monitored the victim’s movements and rarely let her leave the house without him. He also controlled her finances, regularly forcing her to withdraw money from her account for his benefit, including so that he could buy drugs and alcohol.
[21] The appellant regularly threatened that if the victim reported any abuse to the police or left the relationship he would harm her and her children. She was too frightened to leave or to report the abuse to police, friends and family.
R v Gardiner [2015] SASCFC 107 (5 August 2015) – South Australia Supreme Court (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: L eave 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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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: C riminal 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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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’.
Police v Peel [2021] SASCFC 7 (5 February 2021) – South Australia Supreme Court (Full Court)
‘Breach of suspended sentence bond’ – ‘Breach protection order’ – ‘Prosecution appeal against decision to allow appeal’ – ‘Protection order’
Charges: Several offences including contraventions of an intervention order and breach of suspended sentence bond.
Proceedings: Prosecution appeal against Supreme Court decision to allow respondent’s appeal against breach of suspended sentence bond: Peel v Police [2020] SASC 48 (7 April 2020).
Facts: The male respondent was convicted of several offences including contraventions of an intervention order protecting his female former partner. He was sentenced to 4 months and 15 days imprisonment, partially suspended on a good behaviour bond. The respondent breached the bond by further contravening the intervention order. The Magistrate declined to excuse the breach and revoked the suspension. A single judge allowed the respondent’s appeal.
Grounds of appeal: Whether “proper grounds” existed for excusing a failure to comply with a suspended sentence bond.
Held: The single judge below erred, but there was no utility granting permission to appeal or allowing the appeal in this case as the respondent had served the unexpired portion of the sentence.
Consideration of whether there are “proper grounds” involves “consideration of the nature of the breach and the circumstances in which it was committed, and of any disproportionality between the nature and extent of the breach and the severity of the consequence of revoking the suspension and requiring the original sentence to be served” (at [38]). Any history of similar offending may be relevant “on the basis that it informs a full understanding of both the seriousness of the breach offending, and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and hence the proportionality or otherwise of revoking the suspension of that sentence”(at [44]).
The Magistrate was entitled to have regard to the respondent’s history of similar offending, which was a “relevant, and indeed quite significant consideration” in the context of the case, and the judge below erred in concluding otherwise (at [46]).
Warne v The Queen [2020] SASCFC 124 (21 December 2020) – South Australian Supreme Court (Full Court)
‘Appeal against re-sentence’ – ‘Appeal against sentence’ – ‘Coercive control’ – ‘Misuse of alcohol or drugs’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Self-defence’ – ‘Separation’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’
Charges: Basic assault x 1; Aggravated assault causing harm x 2; Possession of a Class A firearm without a licence x 1; Aggravated threatening life x 1; Aggravated assault x 3.
Proceedings: Appeal against re-sentence (re-sentence was imposed following a successful appeal against conviction).
Facts: The offences occurred in connection with a domestic relationship between the appellant man and his female former partner. The appellant was convicted of 8 charges following a trial by jury. He was sentenced to 4 years and 5 months imprisonment, with a non-parole period of 3 years. The appellant successfully appealed his conviction on one count of aggravated assault causing harm. The re-sentencing arising from the appeal against conviction was undertaken by a different judge, as the first sentencing judge had retired. The re-sentencing judge imposed a sentence of 4 years and 9 months imprisonment, with a non-parole period of 3 years and 4 months.
Grounds of appeal:
1.
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.
The re-sentencing judge’s starting point was too great.
3.
The re-sentencing judge erred in finding that home detention was not appropriate in all the circumstances.
4.
The re-sentence was manifestly excessive.
Held: The appeal was allowed. Based on the submissions made to the re-sentencing judge and the content of the sentencing remarks made, Hughes J (with Peek and Stanley JJ agreeing) inferred that the re-sentencing judge overlooked the approach to be taken when imposing subsequent sentences for the same offending identified in R v Baltensperger [2004] SASC 392. In re-sentencing, the judge is “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” (at [41]). This inference gained further support by the lack of significant disparity between the re-sentence and the original sentence (at [42]).
After considering the relevant circumstances, Hughes J held that the original sentence was not manifestly excessive (at [48]-[56]). Hughes J (Peek and Stanley JJ agreeing) noted a controlling course of conduct:
[51] 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.
However, the circumstances concerning the count of aggravated assault causing harm, which was successful on appeal, were to be properly viewed as separate from the other acts as charged, thereby not attracting principles of concurrency. This was therefore the basis for imposing a sentence lower than the original sentence namely, 4 years’ imprisonment with a non-parole period of 2 years and 8 months (at [57]-[59]).
Warne v The Queen [2020] SASCFC 12 (26 February 2020) – South Australia Supreme Court (Full Court)
‘Appeal against conviction’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Self-defence’ – ‘Separation’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’
Charges: Assault x 1; Aggravated assault x 3; Aggravated assault causing harm x 2; Possessing a firearm without a licence x 1; Aggravated threatening life x 1.
Proceedings: Appeal against conviction.
Facts: The complainant in respect of each of the charges of violent offending was the male appellant’s then female partner. The assault charges were aggravated by reason that they were alleged to have occurred in contravention of an Intervention Order.
Grounds of appeal:
1.
The trial judge erred in failing to direct the jury as to their obligations to decide the case only on the evidence, to not discuss the case with persons other than their fellow jurors, to not make their own enquiries, and to bring to the trial judge’s attention any departure from the above by any member of the jury.
2.
The trial judge erred in failing to direct the jury as to self-defence.
3.
The trial judge’s directions lacked balance to the extent that they resulted in a miscarriage of justice.
4.
The trial judge erred in failing to adequately direct the jury in relation to the potential implications for the complainant’s credit of the timing of the photographs purportedly showing the injuries alleged to have been sustained during the course of the conduct the subject of count 1.
Held: Permission to appeal in respect of grounds 1 and 2, and allowing the appeal on ground 2, but only to the extent of setting aside the conviction on count 2 (aggravated assault causing harm) and ordering a retrial on that count, and otherwise dismissing the appeal.
Ground 1: The trial judge ought to have given post-empanelment directions to the effect contended for by the appellant. Nevertheless, there was no miscarriage of justice. This was not a case where there had been media publicity and the appellant did not identify any information of significance that might have been available through internet searching. It was speculative to suggest that the jury’s deliberations were infected by extraneous information.
Ground 2: There was a sufficient evidential basis to require that the trial judge leave self-defence to the jury in respect of the charge the subject of count 2 as the alleged assault was immediately preceded by verbal and physical aggressive conduct by the complainant. The trial judge’s directions in this respect were inadequate, falling short of an accurate and clear articulation of the defence.
However, the court did not accept that the evidence as to the generally volatile nature of the parties’ relationship, and instances of aggressive behaviour by the complainant on other occasions (including her use of an axe in the context of the incident leading to count 2), provided a sufficient evidential foundation for self-defence in respect of the balance of the counts of violent offending with which the appellant was charged.
The appeal in respect of ground 2 was allowed, but only to the extent of setting aside the conviction on count 2.
Application for permission to appeal on grounds 3 and 4 was dismissed. The appellant did not demonstrate any lack of balance in the trial judge’s summing up.
Subsequent appeal against re-sentence was allowed: Warne v The Queen [2020] SASCFC 124 (21 December 2020).
SPC v The Queen [2020] SASCFC 43 (28 May 2020) – South Australia Supreme Court (Full Court)
‘Children’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse’
Charges: 8 counts, including aggravated causing harm with intent to cause harm, aggravated threatening life, rape
Case type: Appeal against conviction
Facts: The appellant an was convicted of 2 counts of aggravated causing harm with intent to cause harm, 3 counts of aggravated threatening life and 2 counts of rape. He was acquitted of a charge of aggravated cause harm. The victim was the appellant’s wife, who had migrated from China in 2009, and with whom the appellant had children. The victim testified that their relationship was marred by verbal, physical and sexual abuse, and recounted an incident of violence and rape which had preceded the charged counts (relationship evidence).
Grounds:
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The judge failed to adequately direct the jury on the use of evidence of the victim’s distress when she reported the offending to a police officer.
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The judge failed to properly direct the jury on the use of the evidence of the violent relationship on the element of consent on the rape charges.
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The verdict on the last rape offence (Count 8) was unreasonable because the evidence could not exclude the possibility that the appellant failed to appreciate that the victim was not consenting.
Held: Kourakis CJ (Nicholson and Bampton JJ agreeing) dismissed the appeal.
As to ground 1, the appellant argued that the judge failed to give any directions as to the proper use of the evidence of the victim’s distress when she attended at the police station. It was submitted that the judge should have directed the jury that (1) because of the passage of time and the significance of the reconciliation contended for by the appellant, the distress was not relevant; and (2) if they were to use the distress as circumstantial evidence of consistency with respect to the alleged rape, they would need to be satisfied that distress was not an emotional reaction to the victim’s decision to leave the appellant ([36]). The Court, however, dismissed this ground for 4 reasons. First, it was not put by the prosecutor, nor left to the jury by the judge, that the victim’s distress was corroborative or supportive of her testimony ([44]). Second, the evidence was admissible due to the close temporal connection to the last rape offence, the degree of distress and the circumstances in which the victim abandoned the course in which she had enrolled to report the appellant’s violence against her. The distress was also proximate to the rape the victim alleged occurred the night before ([45]). Third, the alternative explanations for the victim’s distress proposed on appeal were unrealistic ([46]). Fourth, counsel for the appellant at trial consented to the judge’s proposal not to give any directions on the evidence of distress ([47]).
As to ground 2, the appellant’s complaint primarily related to the judge’s failure to give specific directions on how the relationship evidence was relevant to prove the mental element on 2 of the rape counts ([50]). The Court found that the the judge’s directions on the use of the relationship evidence in considering whether the objective elements of the offence had been established were sound ([56]). The judge did not err by omission in not directing the jury to ignore the relationship evidence on the question of the appellant’s appreciation of whether or not the victim was consenting to sexual intercourse on the rape charges. Neither counsel referred to the relationship evidence on that issue. It was common ground that, notwithstanding their violent relationship, consensual sexual intercourse was a feature of their relationship. The proper use of the relationship evidence on the subjective element of the rape charges was, therefore, not a live issue at trial.
The verdict on count 8 was not unreasonable. It was sufficiently supported by the victim’s evidence, and there was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of her testimony ([64]).
R v Roberts [2019] SASCFC 94 (1 August 2019) – South Australia Supreme Court (Full Court) [Summary prepared by Magistrates’ Associates of the Adelaide Magistrates Court]
‘Admissibility’ – ‘Assault’ – ‘Evidence’ – ‘Propensity’ – ‘Relevancy’
Charges: Causing harm with intent to cause harm
Appeal type: Appeal against conviction
Facts: The defendant was convicted by jury of causing harm with intent to cause harm to the complainant who he was in a sexual relationship with. The defendant, while intoxicated, grabbed her and dragged her out of the house, pushed her on to the footpath and kicked her body causing various injuries. The appellant’s brothers Stephen and Joe were present at the house. The complainant said that before living with the defendant, a former partner, Ray, had also been violent to her. The defence put to the complainant in cross-examination that it was Ray not the appellant who assaulted the complainant. Ray was deceased by the time of the trial. The complainant gave:
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General evidence that the appellant was ‘rough to [her] nearly everyday [they] were together’ and ‘slapped’ her around; and
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Specific evidence that on 14 February 2017 the appellant was angry at her and twisted and broken her arm for which the injury required surgery. The complainant lied to medical staff that she had fallen off a deck.
A police officer who attended the scene gave evidence of two tranches of the appellant’s brother, Stephen’s, statements and conduct:
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The first tranche was that Stephen ‘loudly told police to leave the property and shut the front door’.
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The second was that when told the appellant was arrested for assaulting the complainant, Stephen stated ‘If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way’.
Grounds of Appeal:
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Ground 1: Did the Trial Judge err in admitting the specific evidence as to the appellant having broken the arm of the complainant on 14 February 2017, and in doing so cause a miscarriage of justice?
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Ground 2: Did the Trial Judge err at law in admitting evidence of words spoken out of Court by a person not called as a witness (Stephen Roberts), and in doing so cause a miscarriage of justice?
Held:
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Ground 1: Peek J and Hughes J allowing the appeal, Kourakis CJ dismissing the appeal.
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Ground 2: Peek J allowing the appeal, Kourakis CJ and Hughes J concurring.
Reasons:
Ground 1 – Kourakis CJ (dismissing)
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‘The admissibility of evidence of a violent relationship…between a perpetrator and a victim involved in a domestic relationship has long been held to be admissible on a charge of a violent criminal offence’ citing R v Olasiuki (1973) 6 SASR 255 at 263-264 and R v Hissey at [2] (1973) 6 SASR 280.
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On the admission of the evidence relating to the breaking of the complainant’s wrist by the appellant, the jury ‘could not reason in the appellant’s favour that he was unlikely to be the complainant’s assailant because he was in a romantic relationship with her’ at [4].
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‘The risk of misuse of discreditable conduct evidence is greatest when it is admitted as propensity evidence. It is more difficult to compartmentalise specific propensity reasoning from bad person reasoning’ at [9]
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The probative value of the evidence ‘substantially outweighed any prejudicial effect’ as ‘it showed that the appellant’s romantic relationship with the appellant did not inhibit him from bashing and slapping her around and, importantly, causing her serious bodily harm three weeks earlier’ and as such was admissible under s 34P(2)(a) at [10].
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The evidence of the broken arm assault ‘did not materially add to the prejudicial effect of the evidence that the appellant bashed and slapped around the complainant’ at [10].
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‘Prejudice is not necessarily accumulated by the arithmetic addition of the occasions of discreditable conduct. The prejudice lies in the error of reasoning’ at [10].
Ground 1 – Peek J (allowing) (Hughes J concurring)
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In relation to s 34P(2)(a) prosecution often contend in domestic violence matters that there is a ‘permitted use’ under s 34P(2) for the admission of evidence of prior conduct at [74].
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The only ‘permitted use’ here is said to be that such evidence is relevant to the alleged assault on the basis that ‘the assault did not come out of the blue’ (the out of the blue argument) at [74].
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The out of the blue argument is often linked to and strengthened by delays in reporting to police due to fears of repercussions and situations where the existence of a violent relationship is established or confirmed by independent evidence at [76].
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‘If only evidence of the specific allegation is led…it is not unlikely that members of a jury may gain the impression that the assault charged involves an incongruous, unprovoked and unexplained occurrence’ at [75].
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Tection 34P(2)(a) requires that separate assessments must be made as to both ‘any probative value’ and ‘any prejudicial effect’ of the evidence to determine whether the prosecution have ‘demonstrated that the former substantially outweighs the latter’ at [77].
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In relation to the probative value: If the 14 February 2017 assault is set aside it may be contended that ‘there is an apparent difference in the evidence of the complainant as between the usual degree of violence (‘rough’ and ‘slapping around’) and ‘the high degree of violence alleged to be involved in the subject assault’ at [79].
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The out of the blue argument in this matter is narrow. There was no delay in reporting and there is no independent evidence outside of the complainant’s to establish the existence of a violent relationship at [81].
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In relation to the prejudicial effect: although prosecution eschewed any reliance on s 34P(2)(b), the question arises under s 34P(2)(a) and s 34P(3) ‘as to the extent of the risk that the jury might adopt a process of propensity reasoning due to the doubling of the number of allegations of a high level of violence in circumstances where the allegations appeared superficially similar’ at [82].
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The prosecution did not call medical evidence in relation to the 14 February 2017 assault and in doing so denied the appellant ‘the ability to cross-examine as to whether such injuries where more consistent with her original history of falling from a deck than her later version of an assault’ at [82].
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Under s 34P(3) the Judge is ‘specifically required’ to determine whether the permissible use can be kept ‘sufficiently separate and distinct from the impermissible use’ at [83].
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‘It is quite evident from the transcript that the Judge did not undertake a sufficient analysis of the application of s 34P and did not refer to s 34P(3) at all’ at [83].
Ground 2 - Peek J (allowing) (Kourakis CJ and Hughes J concurring)
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The prosecution ‘attempted to justify the admission of both tranches of Parkinson’s evidence by citing Walton v The Queen (1989) 166 CLR 283 and R v Hendrie (1985) 37 SASR 581 that stand for the proposition that ‘in some circumstances a person’s state of mind may be proved by contemporaneous acts or statements made by that person’ at [27].
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Although the decisions in Walton and Hendrie are ‘unexceptionable’, ‘…the danger of proliferation of tendering evidence of statements or actions of persons not called as witnesses must be guarded against’ at [36].
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Evidence of this nature should only be received ‘if it is of direct and immediate relevance to an issue which arises at trial’ (R v Blastland [1986] AC 41, 53 and R v Szach (1980) 23 SASR 504) at [47].
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The trial judge admitted the evidence of Parkinson in this case to rebut the suggestion put to the complainant in cross-examination that she was assaulted by someone else other than the complainant at [52].
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While it was open to the prosecution to call further evidence that it was not Ray that has assaulted the complainant, this evidence had to be admissible at [58].
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In relation to the first tranche: Stephen’s ‘less than cordial welcome of police arriving at his home was entirely consistent with personal beliefs or feelings he holds about police which could be referable to any number of reasons or previous experiences’ and not necessarily connected to the crime at [60].
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The second tranche of evidence the prosecution’s position is that Stephen’s statement was’ "Consistent" with knowledge that the appellant did consult the complainant’. However, there was in fact no evidence that Stephen knew who assaulted the complainant
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The evidence as to Stephen Roberts’ statement and conduct was ‘nebulous and highly speculative’ as distinct from being directly relevant to trial at [60].
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It ‘is simply not the type of clear and unequivocal "state of mind" evidence’ referred to in Hendrie and Walton. There was no evidence that Stephen knew who assaulted the complainant at [63].
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The prosecution was ‘simply not permitted to tender evidence of an action or statement of a person who they were not prepared to call, on some sort of ‘prophylactic’ basis that the jury might consider that the words were consistent with a prosecution case theory’ at [64].
Appendix 1: 34P–Evidence of discreditable conduct
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(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)–
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(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
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(b) is inadmissible for that purpose (impermissible use); and
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(c) subject to subsection (2), is inadmissible for any other purpose.
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(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if–
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(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
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(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue–the evidence has strong probative value having regard to the particular issue or issues arising at trial.
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(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
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(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
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(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
R v Wilton [2019] SASCFC 65 (13 June 2019) – South Australia Supreme Court (Full Court)
‘Adequacy of directions to jury’ – ‘Confessions and admissions’ – ‘Miscarriage of justice’ – ‘Property offences’
Charges: 1x aggravated serious criminal trespass in a place of residence, 1x theft.
Appeal type: appeal against conviction of above charges.
Facts: The appellant and the complainant were in a relationship and two children were born of that relationship. The appellant and the complainant had separated and there were family court orders allowing the appellant fortnightly access to the children and restraining him from being within 50 metres of the complainant’s house. The appellant was found in the complainant’s house in possession of various items belonging to the complainant. Upon the police’s arrival, the appellant stated, “I fucked up” and begged the complainant not to press charges.
Issues: The appellant advanced two grounds of appeal; both grounds were considered together since they were intrinsically linked in both time and context ([42]). The appellant argued that the trial Judge failed to give adequate directions to the jury as to the use that could be made of the purported confessional statement “I fucked up” and the evidence of the appellant begging not to be charged ([3]).
Decision and reasoning: appeal dismissed.
To illustrate that the trial judge’s directions were not deficient, Parker J first made two material observations of the trial proceedings. The first was that the trial Judge reminded the jury of the defence’s submission that the appellant’s remarks were potentially equivocal and couldn’t be regarded as determinative ([47]). The second was that the trial Judge expressly stated that the use that could be made of the appellant’s behaviour was entirely within the jury’s discretion; it could be used for or against him, rejected in whole or in part, or attributed with different degrees of significance ([48]).
His Honour then referred to the observations of the High Court in RPS v The Queen to reflect the absence of any error in the trial Judge’s directions. In the extract, the High Court stated that the facts are to be determined by the jury and the trial Judge may comment on the facts but often the safest course for a trial Judge will be to make no comment on the facts beyond reminding the jury of the arguments of counsel ([49]). In addition, for the same purpose, his Honour referred to similar observations made in R v Golubovic where it was pointed out that in trials such as the one at hand, there may be little need for the judge to identify the issue or explain the cases of the parties ([50]).
Collectively, these observations are said to point towards a key principle relevant to the appeal, that is, when considering the adequacy of the Judge’s directions to the jury, it is important that the factual issues are few and not complex ([49]-[51]).
For these reasons, amongst others, his Honour deemed that it was unnecessary for the Judge to provide more elaborate directions in the terms suggested by the appellant (see [3]). The directions given by the Judge were viewed as sufficient to ensure the jury wasn’t confused about the issues that needed to be determined ([53]).
Police v Heritage [2019] SASCFC 60 (31 May 2019) – South Australia Supreme Court (Full Court)
‘Activation of suspended sentence’ – ‘Breach of conditions of good behaviour bond’ – ‘Sentence’
Charge: Aggravated assault.
Appeal type: Appeal against Magistrate’s sentence (excusal of breach of bond).
Facts: In 2016 the respondent assaulted his partner and was sentenced to imprisonment for 9 months, suspended upon entering into a good behaviour bond for 18 months. In 2017 the respondent breached his good behaviour bond by committing a further assault on his partner. The Magistrate excused the breach of bond, extended the bond by 6 months, and sentenced the respondent to imprisonment for 28 days for the fresh offending suspended upon the respondent entering into a further good behaviour bond for 18 months. The Police appealed against the excusal of the breach of bond ‘on the ground that, in excusing the breach, the Magistrate erroneously relied on the respondent’s personal circumstances as opposed to the nature and circumstances of the offending’ at [3].
Appeal dismissed by single Judge. Police sought permission to appeal to Full Court.
Issue: Did the Magistrate erroneously rely upon the respondent’s personal circumstances as opposed to the nature and circumstances of the offending when excusing the breach of bond?
Decision and reasoning: Granting permission to appeal and dismissing the appeal, the Full Court held:
‘The approach by the Magistrate to the finding of proper grounds to refrain from revoking the suspension was erroneous, as was the Magistrate’s conclusion that there were proper grounds to refrain from revoking the suspension’ at [41]. ‘The Judge erred in concluding that the Magistrate did not rely on the respondent’s personal circumstances in deciding to refrain from revoking the suspension’ at [47]. Notwithstanding the error, the appeal should be dismissed in the exercise of the court’s residual discretion, as the respondent has been living a law-abiding life in the community for an extended period of time since being sentenced, and the balance of the original period of suspension of the original sentence and the extended period of the suspension has now expired at [63].
Reasoning - proper grounds:
The police relied upon a series of decisions commencing with Norman v Lovegrove [1986] 40 SASR 266and R v Buckman [1988] 47 SASR 303 in which the Supreme Court held that when determining whether there are proper grounds within the meaning of s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA)—a largely identical provision is now contained in s 114(3) of the Sentencing Act 2017 (SA)—upon which a breach of bond should be excused, those proper grounds must relate to the ‘nature and circumstances of the breaching offence as opposed to the personal circumstances of the defendant’ at [13]. Blue J held in relation to the meaning of the expression proper grounds that ‘it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection 58(3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach’ at [22]. His Honour reasoned that the ‘distinction between circumstances of the offence and personal circumstances is well understood in practice although it is more difficult to define in a priori terms. The circumstances of the offence comprise those circumstances existing at the time of commission of the offence which bear on the culpability of the offender in committing the offence’ at [31].His Honour differentiated between a ‘circumstance of the offence’, for example, an offender suffering a mental impairment which contributed to the committing of the offence, and a ‘personal circumstance’, for example, where ‘it is desirable that a defendant receive treatment for a mental impairment which cannot effectively be provided in prison’ or where hardship is caused to the defendant’s dependant at [31].
His Honour, at [35], cited the Magistrates three reasons for refraining from revoking the suspension:
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That the respondent needed professional assistance to address his mental health and anger management issues;
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That the respondent was supporting his partner and 10 month old child who would suffer hardship if the respondent were to be imprisoned; and
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That the revocation of the suspension of the sentence of imprisonment would be disproportionate and oppressive to the 2017 offending.
His Honour held that reasons 1 and 2 were personal circumstances. While the third reason related to the circumstances of the breach, his Honour held that ‘there was no basis on which it was open to the Magistrate to conclude that activation of the original sentence would be a disproportionate consequence of the 2017 offending’ at [40].
Reasoning – the reasons of the Judge:
The Judge referred ‘to decisions of single Judges of the Court that the Full Court authorities do not preclude a court taking into account personal circumstances’, however, stated that it was not necessary to decide this as the Magistrate did not take into account the respondent’s personal circumstances when deciding to restrain from revoking the suspension’ at [43]. Blue J held the Judge erred in his conclusion that the Magistrate did not rely on the respondent’s personal circumstances in refraining from revoking the suspension.
Reasoning – permission to appeal:
Permission to bring a second appeal by the Crown against sentence by a magistrate ‘will only be granted in rare and exceptional cases. This will ordinarily only be when it is necessary to establish or maintain correct sentencing principles or adequate sentencing standards or where the error is so disproportionate to the seriousness of the crime that it demands correction on appeal’ at [49]. Permission to appeal should be granted ‘having regard to the importance of the maintenance of the correct sentencing principles and the availability of the residual discretion’ at [61]. However, as allowing the appeal would have resulted in the defendant’s imprisonment after he had been living a law-abiding life in the community for a sustained period’ at [62], the Court should dismiss the appeal in the exercise of its residual discretion.
R v Dhir [2019] SASCFC 55 (22 May 2019) – South Australia Supreme Court (Full Court)
‘Misdirection or non-direction’ – ‘Permissible and impermissible use of evidence’ – ‘Sexual and reproductive abuse’
Charges: 1 x digital rape (count 2), 4 x aggravated assault causing harm (counts 1, 3, 4 and 5).
Appeal type: Appeal against conviction of above charges.
Facts: The appellant and complainant were married. The appellant allegedly committed the rape by putting his hand under the complainant’s jeans at a train station platform. The assault (count 3) was alleged to have been committed soon after the rape when the couple was walking home from the train station. The remaining offences were committed in the matrimonial home.
Issues: The appellant appealed against the convictions on seven grounds (see [4]), all of which generally concerned the directions given to the jury by the Judge.
Decision and reasoning: appeal was allowed on grounds 3, 4, 5 and 7 and dismissed on grounds 1, 2 and 6. All convictions ordered on the District Court information were quashed and the matter was remitted for a new trial.
For the purposes of convenience, Kourakis CJ first dealt with the fifth ground of appeal in which the appellant contended the Judge erred in directing the jury to ignore a defence submission concerning the plausibility of the digital rape charge (see [49]-[50]). His Honour accepted this ground of appeal, claiming the Judge withdrew a legitimate and factually compelling submission ([50]) with the likely effect of leading the jury to interpret the Judge’s direction as withdrawing the defence counsel’s broader implausibility submission (of which this particular submission formed an integral part of) from their consideration ([51]).
The first ground of appeal was divided into two complaints; his Honour rejected the first complaint, stating it was unnecessary to draw the distinction in order to comply with s 34R of the Evidence Act 1929 (SA) (see [53]). As to the second complaint, His Honour acknowledges that the Judge ought to have expressly directed the jury in relation to the impermissible use of the discreditable conduct evidence under s 34R(1) of the Evidence Act 1929 (SA). In failing to do this, the Judge was said to have failed to comply with the obligations laid out under s 34R(1). Nonetheless, such an omission did not occasion any miscarriage of justice and the second complaint was therefore rejected ([58]).
His Honour notes the merit of the second ground of appeal in stating that the Judge should have directed the jury as to the limited use that could be made of the alleged admissions ([59]). However, his Honour discerned no miscarriage of justice in this omission on the Judge’s part, particularly in light of the Judge’s cautionary observations ([45]-[46]) and the fact that the complainant’s evidence was proven unreliable in any event ([59]).
The third, fourth and seventh ground of appeal raised a particular issue that was considered through the relevant authorities (see [61]-[75]). Ultimately, his Honour allowed these grounds of appeal in recognising that the Judge placed undue weight to the evidence of distress.
R v Mark [2019] SASCFC 48 (9 May 2019) – South Australia Supreme Court (Full Court)
‘Appeal against sentence’ – ‘Grounds for interference’ – ‘Sentence manifestly excessive’
Charges: 1x aggravated assault, 1x breach of a suspended sentence bond.
Appeal type: appeal against sentence for the above offences.
Facts: the appellant punched his domestic partner in the face. In doing so, the appellant breached the intervention order in place at the time which prohibited the appellant from assaulting, threatening or intimidating his domestic partner. The appellant entered a guilty plea to the assault charge and the matter was transferred to the District Court for sentencing with the breached bond and other matters. An 11-month sentence was imposed for the aggravated assault while the suspended sentence was revoked and a six-month sentence (subject of the good behaviour bond) was ordered to be served cumulatively on the sentence for the aggravated assault.
Issues: the appellant’s grounds of appeal were two-fold. First, the sentence imposed for the aggravated assault was manifestly excessive ([6]). Second, the judge erred in sentencing the appellant on the basis that the offence was committed against a background of previous domestic violence ([6]).
Decision and reasoning: appeal was allowed, sentence imposed by trial Judge was set aside and the appellant was resentenced (see [36]).
His Honour first set out the authority and principles relevant to determining whether to interfere on appeal with a decision on sentence and whether a sentence is manifestly excessive ([17]-[21]).
His Honour rejected the appellant’s submission that the assault was on the lower end of the scale of seriousness. A single punch to the face was deemed serious by his Honour in light of the fatal consequences such an action may have had ([23]-[24]). It’s seriousness was also heightened by the fact it was committed with an intervention order in place at the time which aimed to protect the victim from the assault that occurred ([27]).
Whether the starting point of 18 months for a first offence of violence produced a sentence outside the permissible range for the offending and offender in question was determined in reference to multiple factors. First, the importance of specific and general deterrence in sentencing for offence of domestic violence lent some justification to the sentence imposed ([26]). Second however, the offender’s poor track record of responding to the leniency extended to him by the courts (see [10]) was considered in light of his personal and mitigating circumstances ([28]). Ultimately, notwithstanding the seriousness of the offending, and having regard to the fact that the assault was the appellant’s first offence of violence, his Honour concluded that a starting point of 18 months was too high and outside the permissible range of sentences for this offending and this offender ([31]).
The second ground of appeal was allowed since the factual basis of the judge’s sentence lacked a sufficient foundation on the evidence presented to the court and wasn’t actually conceded by the appellant ([32]).
R v Adamson [2018] SASCFC 114 (11 November 2018) – South Australia Supreme Court (Full Court)
‘Arson’ – ‘Damaging property’ – ‘Evidence’
Charges: Arson x 1.
Appeal type: Appeal against conviction.
Facts: The appellant was found guilty of arson following jury trial. It was alleged that he deliberately lit a fire inside a townhouse in which he and his partner lived until their separation three weeks prior to the fire. His alibi was that he was at a lacrosse club at the time that the fire was lit. The prosecution relied upon a number of items of circumstantial evidence which it argued cumulatively showed the appellant’s guilt beyond a reasonable doubt.
Issues: The appellant appealed his conviction on the basis that the guilty verdict was unreasonable and cannot be supported having regard to the evidence, and in particular in consideration of his alibi. He contended that no reasonable jury could have rejected his alibi as a reasonable possibility.
Decision and reasoning: In considering the grounds of appeal, the Court applied the principle set out M v The Queen [1994] HCA 63, namely, whether, on the totality of the evidence, it would be open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. On a thorough analysis of all the evidence, the Court dismissed the appeal on the basis that:
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The evidence established that the fire in the townhouse had been deliberately lit. It also established that a few hours prior to the fire being lit, the appellant spoke of burning it down.
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The strength of the evidence that supported the appellant’s alibi was a matter for the jury, to be considered in light of the other evidence presented in the trial.
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There was a sufficient basis in the evidence for the jury to reject the appellant’s alibi as a reasonable possibility, and to find beyond reasonable doubt that he deliberately lit the fire.
R v Peet [2018] SASCFC 91 (5 September 2018) – South Australia Supreme Court (Full Court)
‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Sentencing’
Charges: Murder.
Appeal type: Appeal against sentence.
Facts: The circumstances of the offending were that early in the morning, following an argument with the respondent’s partner, during which she slapped, kicked and hit him with a vacuum cleaner pole, the respondent struck her with a crow bar at least six times. The respondent dragged her body to the laundry where he placed a cable tie around her neck and tightened it. The combined effect of the blows and the compression of her neck caused her death. Not long after this occurred the children woke. The respondent made breakfast for them. He then went outside and smoked a cigarette before returning inside. There was a knock at the door. The respondent put the children in their rooms and told them to be quiet. He did not answer the door and the people knocking went away. At some point, and possibly whilst the people were still at the front door, the respondent went back to each child. The respondent restrained the six-year-old with cable ties and placed a sock in her mouth, fixing it in position with packing tape. He placed a cable tie around her neck and tightened it. Her death was caused by the combined effect of suffocation and asphyxiation. The respondent also restrained the five-year-old with cable ties and asphyxiated him. His tongue was bruised suggesting that prior to death he too may have had something placed in his mouth obstructing his airway.
The sentencing Judge sentenced the respondent to life imprisonment with a non-parole period of 30-years to commence on the day the respondent was taken into custody. The sentencing Judge accepted that the respondent was experiencing a degree of dissociation when he killed the children. On appeal, the DPP contended that the 30-year non-parole period was manifestly inadequate, and submitted that the inadequacy was so great, having regard to the gravity of the offending, that the Court should increase the non-parole period to ensure the maintenance of adequate standards of punishment for the offence of murder. The respondent conceded that the non-parole period was manifestly inadequate and that it should be set aside and a new non-parole period fixed.
Issues: Whether the sentence was manifestly inadequate.
Decision and reasoning: The Court took into account the respondent’s personal circumstances ([87]), loss felt by the family ([85]), and the value of human life. At [83]-[84], the Court noted that –
‘A just sentence in the present case must accord due recognition to the human dignity of three victims… It has been said that the value of human life is intrinsic. The murderer denies their victim life and all the potentialities that accompany living which are of inestimable worth. Speaking generally, that denial, that exaction, cost or loss, is magnified where the victim is a child. The younger and more innocent the child the more the murderer repulses us as a community and the more grave or heinous the act of murder because of the value we place on life.’
The punitive, protective and rehabilitative purposes of fixing a non-parole period were also relevant. The punitive purpose in particular reflected the gravity of the offending. The sentencing Judge found that the respondent intended to kill each victim. As King CJ said in R v Stewart (1984) 35 SASR 477, multiple murders fall into the worst category of offending. Therefore, condign punishment was afforded great weight. The Court also noted that the respondent should not be left without hope for spending some time in the community again in the future, as this promotes rehabilitation. The murder was not premeditated in the conventional sense. The murder also occurred in the context of a relationship characterized by domestic violence. The murder was described at [78] as being brutal and the final act cold and lacking in humanity. Citing Munda v Western Australia (2013) 249 CLR 600, ‘A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner’. Although the sentencing Judge found that the respondent suffered a degree of dissociation at the time of the incident, this neither prevented him from forming the intent to kill nor did it prevent him from understanding the nature and quality of his actions. It helped him to depersonalize his two children, but did not prevent him taking action which he considered necessary for the purposes of his own self-preservation ([80]).
The Court found that the determination of a non-parole period in this case could not be reduced to a formula and that the totality principle was applicable to the setting of a non-parole period in relation to a life sentence for murder. The Court allowed the appeal and held that the non-parole period fixed by the sentencing Judge was manifestly inadequate. A non-parole period of 36 years was substituted. Although the respondent was entitled to a discount of up to 10% on the basis of his guilty pleas, to allow the respondent any further reduction would result in a non-parole period unacceptably disproportionate to the gravity of the offending which would vindicate the dignity of the victims ([90]).
R v Hibeljic [2018] SASCFC 35 (11 May 2018) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (Full Court)
*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘Breach of bail’ – ‘Coercive control’ – ‘Contravention of a protection order’ – ‘Damage to property’ – ‘Emotional and psychological abuse’
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) – South Australia Supreme Court (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) – South Australia Supreme Court (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] SASCFC 90 (19 August 2016) – South Australia Supreme Court (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) – South Australia Supreme Court (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’ – ‘Coercive control’ – ‘Economic abuse’ – ‘Financial abuse’ – ‘Following, harassing and monitoring’ – ‘Fresh evidence’ – ‘Isolation’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Threats to children’
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]).
Parker J (Lovell and Nicholson JJ concurring) described the coercive control which the appellant subjected the victim to:
[19] When the victim was threatened or attacked by the appellant she would try to leave their flat, often running into nearby streets and parks and attempting to hide. The appellant would frequently chase her or track her down in order to continue his abuse.
[20] The appellant monitored the victim’s movements and rarely let her leave the house without him. He also controlled her finances, regularly forcing her to withdraw money from her account for his benefit, including so that he could buy drugs and alcohol.
[21] The appellant regularly threatened that if the victim reported any abuse to the police or left the relationship he would harm her and her children. She was too frightened to leave or to report the abuse to police, friends and family.
R v Gardiner [2015] SASCFC 107 (5 August 2015) – South Australia Supreme Court (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: L eave 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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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: C riminal 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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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’.