KAIN MAZOMENOS v THE KING [2025] SASCA 41

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE KIMBER) [2023] SASC 85 Appellant: KAIN MAZOMENOS Counsel: MR N VADASZ - Solicitor: VADASZ LAWYERS Appellant: JEREMY SANDELL Counsel: MRS M SHAW KC WITH MR J WILSON - Solicitor: NICK THOMSON LEGAL Appellant: THOMAS PINNINGTON Counsel: MR B ARMSTRONG - Solicitor: MANGAN EY & ASSOCIATES Respondent: THE KING Counsel: MR W SCOBIE WITH MS L HURLEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 14/11/2024 File No/s: SCCRM-23-035808; SCCRM-24-017412; SCCRM-23-035316; SCCRM-23-038137 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MAZOMENOS v THE KING; SANDELL v THE KING; PINNINGTON v THE KING [2025] SASCA 41 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice Stein) 11 April 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO- OFFENDERS AND OTHER RELATED OFFENDERS Application for permission to appeal against sentence. On 30 May 2023, a judge sitting alone found each of the three applicants not guilty of one count of murder and guilty of one count of manslaughter. The prosecution case was that each of the three appellants and one further person, Thomas Nicholls, were a party to a joint enterprise to attack the deceased, Mr Victor Codea, in the Adelaide High School carpark on West Terrace on 20 August 2020. The attack resulted in Mr Codea’s death. The judge was not satisfied beyond a reasonable -- 1 of 46 -- doubt that the intention of the men who struck Mr Codea was to cause grievous bodily harm (‘GBH’). He was satisfied that the men who struck Mr Codea intended to cause serious harm, recognising this was not sufficient to establish murder. Mazomenos was sentenced to a head sentence of 13 years with a non-parole period of 10 years and six months. Pinnington was sentenced to a head sentence of 11 years with a non-parole period of eight years and 10 months. Sandell was sentenced, in regard to his conviction of manslaughter and also two counts of trafficking a controlled substance, to which he had also pleaded guilty, to a head sentence of 15 years, one month and seven days with a non-parole period of 11 years and six months. The issues raised by each applicant on appeal overlap. Broadly, these issues include whether: 1. The sentences were manifestly excessive (all applicants). 2. The judge failed, in sentencing Sandell and Mazomenos for manslaughter, to apply the parity principle. 3. The judge erred in sentencing on the basis that the applicants intended to cause ‘serious harm’ and thereby imported a non-existent mental element into the offence of manslaughter by unlawful and dangerous act, and otherwise breached the De Simoni principle (Sandell and Mazomenos). 4. It was open on the evidence to find that Pinnington intended to cause ‘serious harm’. 5. The judge erred in failing to have proper regard to the applicants disadvantaged backgrounds (Sandell and Mazomenos). 6. The judge erred in not accepting the offer by Mazomenos to plead guilty to manslaughter was a matter of mitigation and evidence of genuine remorse, and erred in his assessment of prospects of rehabilitation. 7. The judge erred in his treatment of whether Pinnington was associated with the Finks Motorcycle Club. 8. The judge erred in sentencing Sandell on the basis that he was responsible for each blow. 9. In circumstances where Sandell’s conviction for trafficking a controlled drug must be set aside as no offence was disclosed, whether a different sentence should be imposed in respect of the remaining trafficking conviction. 10. In circumstances where the judge sentenced Sandell for trafficking methylamphetamine on an incorrect factual basis, whether this court should set aside that sentence and resentence Sandell. 11. The judge failed to bring to account Sandell’s trafficking offending as part of the same course of conduct as the manslaughter offence. 12. The judge erred in imposing a sentence on Sandell that accumulated the sentences for manslaughter and trafficking in the absence of an order that the sentences be served cumulatively. 13. The judge erred in failing to have proper regard to the principle of totality (Sandell). Held (by the Court), refusing Mazomenos and Pinnington leave to appeal, setting aside Sandell’s conviction for trafficking in a controlled drug (Count 2), granting Sandell leave to appeal on Grounds 1B and 1C, refusing Sandell leave to appeal on the balance of grounds and dismissing each of the appeals against sentence: 1. It is not reasonably arguable that the judge failed to apply the parity principle in sentencing Sandell and Mazomenos. -- 2 of 46 -- 2. The judge did not err in sentencing the applicants on the basis of the finding that they intended to cause serious harm. The finding that the intention of the joint enterprise was to cause serious harm was manifestly open. 3. It was open for the judge to find it was within contemplation of all parties to the joint enterprise that they would cause serious harm and that Sandell was responsible for each and every blow. 4. The judge brought to account the deprived backgrounds of Sandell and Mazomenos. The applicants did not demonstrate the judge’s application of the Bugmy principle was inadequate. 5. Mazomenos did not demonstrate the judge erred in not accepting the offer to plead guilty to manslaughter was a matter of mitigation and evidence of genuine remorse, or erred in his assessment of prospects of rehabilitation. 6. The judge’s finding in relation to Pinnington’s association with the Finks was manifestly open. 7. The respondent accepted Sandell’s conviction on Count 2 should be set aside. Nonetheless, the sentence of four years, three months and 10 days is affirmed given the offending in respect of Count 1. 8. The judge did not err in failing to accord greater concurrency in respect of Sandell’s trafficking offending and manslaughter offence. 9. The complaint that the judge erred in imposing a sentence on Sandell that accumulated the sentences for manslaughter and trafficking in the absence of an order that the sentences be served cumulatively is entirely without merit. 10. The complaint that the judge failed to have proper regard to the principle of totality is wholly without merit. 11. On each applicant’s case, it was not established that the applicant’s sentences were manifestly excessive. Sentencing Act 2017 (SA) ss 11, 45, 47; Criminal Law Consolidation Act 1935 (SA) s 23; Criminal Procedure Act 1921 (SA) ss 157, 158, 160; Criminal Appeal Act 1912 (NSW) s 7; Crimes Act 1958 (Vic) s 569, referred to. R v De Simoni (1981) 147 CLR 383; Bugmy v The Queen (2013) 249 CLR 571; Lowe v the Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Cromb v The King; Pay v The King [2024] SASCA 8; Hassan v The Queen [2022] SASCA 56; Lees v The Queen [2022] SASCA 93; Gillard v The Queen (2003) 219 CLR 1; Lloyd v The Queen [2022] NSWCCA 18; Sypher v The Queen [2020] NSWCCA 336; R v Zefi (2017) 129 SASR 161; R v Franklin (2012) 114 SASR 206; R v Hansen (2011) 206 A Crim R 54; R v Young (2016) 126 SASR 41; Kentwell v The Queen (2014) 252 CLR 601; Slattery v R (No 2) [2023] NSWCCA 171; McL v The Queen (2000) 203 CLR 452; R v Copeland (No 2) (2010) 108 SASR 398; R v Nylander (2003) 228 LSJS 24; R v Cramp (2010) 106 SASR 304; Hawkett v Demichelis (1975) 12 SASR 274; R v Longford [1970] 3 NSWR 276; Hackett v The Queen [2021] SASCA 32; Elias v The Queen (2013) 248 CLR 483; Markarian v The Queen (2005) 228 CLR 357; House v The King (1936) 55 CLR 499; Barbaro v The Queen (2014) 253 CLR 58; R v Pham (2015) 256 CLR 550; Thrupp v The King [2022] SASCA 97; R v Forbes (2005) 160 A Crim R 1; The Queen v Lavender (2005) 222 CLR 67; R v Wheeler [2015] SASCFC 83; R v Williams [2018] SASCFC 14; Vartzokas v Zanker (1989) 51 SASR 27; Veen v The Queen [No 2] (1988) 164 CLR 465, considered. -- 3 of 46 -- -- 4 of 46 -- MAZOMENOS v THE KING; SANDELL v THE KING; PINNINGTON v THE KING [2025] SASCA 41 Court of Appeal – Criminal: Kourakis CJ, Bleby JA and Stein AJA 1 KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Bleby JA and Stein AJA. I would add the following reasons for refusing permission to appeal on Grounds 1.1 and 3A of Sandell’s Notice of Appeal and Ground 3 of Mazomenos’ appeal. 2 The Judge’s finding that the applicants had joined in a criminal enterprise to cause serious harm to Mr Codea was a finding of fact which satisfied a necessary element of the offence with which they were charged. They were not charged as the perpetrators of the murder of Mr Codea. They were charged as secondary parties who had joined in a criminal enterprise to commit the acts which resulted in Mr Codea’s death. It is an element of liability for manslaughter founded on a joint criminal enterprise that the parties to it agreed to engage in the unlawful and dangerous conduct which caused death, or foresaw that conduct. The finding that the appellants agreed to commit serious harm satisfied that element. The relevant finding of the Judge appears from the following paragraphs:1 I accept the evidence of Ms X that the punches were directed at the head. When asked if she had formed an impression as to the part of the body the person punching was trying to connect with, I found her response compelling: ‘Yeah his head, his upper body. It wasn’t shots to the ribs, it was shots to the head’. I am satisfied that she formed that impression because that is what she saw. At times in her evidence, Ms X expressed uncertainty about whether any kick connected with the head of the deceased. For example, she said she was ‘pretty sure’ that kicks connected with the head and that she could not remember whether the foot connected with the head. I was impressed with the care with which Ms X took not to overstate her level of confidence about what she had seen. Nonetheless, I am satisfied that the head was the part of the body at which the kicking was directed. I accept her evidence that the person kicking ‘could have been making contact with his shoulder … could have been making contact with the head’. The shoulder is immediately adjacent to the head. The attack was immediate and from both sides. I am satisfied the kicks were directed at the head. … In my view, the matters of particular significance in evaluating whether the prosecution has established beyond a reasonable doubt that the joint enterprise was to cause GBH are that: two men delivered blows as part of a co-ordinated, well planned attack from both sides which was designed to take Mr Codea by surprise and limit his opportunity to protect himself; the blows were directed at the head over a period of about 10 seconds; the blows were punches and kicks delivered with force; and Mr Codea was particularly vulnerable as he was seated in a vehicle with his seat belt on. As a matter of common sense, the head is a vulnerable part of the body. That the attack was at that part of the body is particularly important to the issue of what had been agreed. 1 R v Sandell & Ors [2023] SASC 85 at [111]-[112], [299]-[300]. -- 5 of 46 -- [2025] SASCA 41 Kourakis CJ 2 While the above matters are consistent with the joint enterprise being to cause GBH and must be evaluated in combination, I have been left with a reasonable doubt about that. I am not satisfied that conclusion is the only rational inference on the whole of the evidence available to be considered in the respective cases of the defendants. In my view, it is reasonably possible that the joint enterprise fell short of being to cause GBH. I am satisfied that may have been the scope of the joint enterprise, but that is not enough. I am satisfied the joint enterprise entered into by all defendants, and participated in by all defendants, was to cause serious harm. That is also not enough. I cannot exclude as a reasonable possibility that the agreement was to assault Mr Codea in a serious way but without the agreement being to cause GBH. (Footnotes omitted) 3 The submissions on the appeal on the De Simoni ground focussed on the elements of manslaughter in respect of a perpetrator of that offence, and not on the elements necessary to establish liability for the offence as a participant in a joint criminal enterprise to commit the offence. 4 It is an element of liability by joint criminal enterprise that the participants in the enterprise agreed to engage in the unlawful conduct which constituted the offence charged, or that they foresaw the commission of those acts in the course of engaging in a joint criminal enterprise to commit another crime. If the mental element of the perpetrator extends to an accompanying knowledge, belief or foresight of the result of that conduct, or the circumstances in which it will be committed, it may also be a necessary element that the other participants assented to, or foresaw, the conduct being committed with that mental state or result. No such mental state is an element of unlawful and dangerous act of manslaughter. An intention to engage in unlawful or dangerous conduct which, in fact, results in death is sufficient. 5 The liability of the applicants therefore depended on proof that they had joined a criminal enterprise to engage in conduct of the kind which caused Mr Codea’s death and that, objectively, that conduct was dangerous. It was necessary, therefore, to make a finding as to the nature of the assault and the extent of the violence which they had agreed would be inflicted on Mr Codea. 6 The finding that the applicants agreed to participate in a joint criminal enterprise to cause Mr Codea serious, but not grievous, bodily harm was, at the same time, a finding on which the verdict of not guilty of murder rested, and a finding of fact which satisfied the elements of the unlawfulness and dangerousness of the enterprise. The Judge was not bound to limit his findings of fact as to the unlawful object of the enterprise, or the dangerousness of the conduct, to the minimum criminality necessary to support the verdict of guilty of manslaughter by joint criminal enterprise. 7 Plainly, it would be an artificial, if not impossible, exercise to attempt to find whether or not the participants had agreed to inflict a blow or blows which, objectively, carried an appreciable risk of serious injury. Participants in a joint criminal enterprise of that kind do not frame their agreement by reference to the -- 6 of 46 -- [2025] SASCA 41 Kourakis CJ 3 objective legal test of dangerousness which is an element of the offence of manslaughter. Few, if any, would be heard to say ‘I agree only to an attack which falls short of dangerous for the purposes of the law of manslaughter’. It is equally unrealistic and unnecessary to expect a judge or jury to find, at a level of detail, the specific blows that they had agreed to inflict. Again, what can be found on the basis of direct and/or circumstantial evidence, in the generality of cases of this kind, is what the participants broadly agreed to regarding whether or not a weapon or weapons would be used, and the nature and degree of the harm that would be inflicted. 8 I proceed on the basis that the applicable sentencing principle articulated by Gibbs CJ in R v De Simoni2 is that it is an error to have regard to a circumstance of the offending which is an element of an uncharged offence, or an uncharged statutory circumstance of aggravation, which, either alone or in conjunction with the elements of the offence, of which they have been convicted, would establish liability for that uncharged offence or circumstance of aggravation.3 On the other hand, it is not only permissible, but mandatory, to have regard to the elements of the offence of which the offender has been convicted of and the attendant circumstances of those elements. 9 In this case, in addition to explaining why the Judge was not satisfied that the offence of murder had not been proved, the Judge’s finding as to the intention to cause serious harm was no more than a finding that the applicants had agreed to engage in conduct of that kind, and that it was conduct of that kind which was dangerous and resulted in Mr Codea’s death. The applicants’ agreement necessarily implies an intention to engage in violence of that kind. The intention to which the Judge had regard was therefore no more than an element of the offence of manslaughter by participating in a joint criminal enterprise. An agreement, and therefore, an intention to engage in conduct causing serious harm is more culpable than participation in an enterprise to engage in conduct which was unlawful and dangerous, hoping only for those minor consequences which are the most likely result of the conduct. A simple example will suffice. Engaging in a prank which would most probably result in no more than a bruise and an abrasion, and hoping for no more than that, but which nonetheless posed an appreciable risk of serious injury, is much less serious than joining a criminal enterprise to inflict serious harm, if the conduct causes death. 10 I acknowledge that the Judge’s finding could equally serve as a finding that the applicants had participated in a joint criminal enterprise to cause serious harm and had, therefore, committed the offence of causing serious harm with an intention to do so. However, for all practical purposes, that is the same element which was necessary for their conviction of manslaughter based on the joint enterprise found by the Judge. I take the view that the commonality between the offences so described would be sufficient to support a plea of autrefois convict if 2 (1981) 147 CLR 383. 3 Ibid. -- 7 of 46 -- [2025] SASCA 41 Kourakis CJ 4 the applicants had been charged with both offences on the same Information. However, I acknowledge that a different view might reasonably be taken. Be that as it may, that commonality is sufficient to distinguish this case from the case to which the De Simoni principle applies. Sentencing offenders guilty of manslaughter by participation in a joint criminal enterprise to engage in unlawful and dangerous conduct would otherwise be artificially constrained and would not rationally serve any public purpose. 11 BLEBY JA and STEIN AJA: Each of the three applicants in this matter seeks leave to appeal against their sentence for manslaughter and additionally, in the case of the applicant Sandell, for two counts of trafficking in a controlled drug. 12 On 30 May 2023, a judge of this Court sitting alone found each applicant not guilty of one count of murder and guilty of one count of manslaughter.4 The prosecution case was that each applicant, and one further person, Thomas Nicholls, were party to a joint enterprise to attack the deceased, Mr Victor Codea, in the car park of Adelaide High School at West Terrace, Adelaide. The attack occurred on 28 August 2020 and resulted in Mr Codea’s death. 13 The applicant Sandell had pleaded not guilty to murder but guilty to the alternative charge of manslaughter. The prosecution did not accept that plea. The applicant Mazomenos offered to plead guilty in satisfaction of the charges but did not enter that plea. The verdict and sentences 14 The judge was not satisfied beyond reasonable doubt that the intention of the men who struck Mr Codea was to cause grievous bodily harm (‘GBH’). He was satisfied that the men who struck Mr Codea intended to cause serious harm, recognising that this was not sufficient to establish murder.5 15 The judge found beyond a reasonable doubt that the fatal blow or blows were deliberate and unlawful. He was satisfied that the fatal blow(s) was inflicted by at least one of the defendants and that before the blow(s), each defendant entered into a joint enterprise to assault Mr Codea and participated in that joint enterprise. He was consequently satisfied beyond reasonable doubt that each defendant was responsible for the blow(s) that was or were a substantial cause of Mr Codea’s death.6 16 The judge was also satisfied beyond reasonable doubt that every punch and kick directed at the head of Mr Codea was one that a reasonable person in the position of the defendants delivering the blows would have realised was exposing Mr Codea to an appreciable risk of serious injury. He was consequently satisfied 4 R v Sandell & Ors [2023] SASC 85. 5 [2023] SASC 85 at [305]-[308]. 6 [2023] SASC 85 at [311]. -- 8 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 5 beyond reasonable doubt that the fatal blow(s) was dangerous.7 On that expressed basis, he found each applicant, and Mr Nicholls, guilty of manslaughter.8 17 On 1 September 2023, the judge sentenced each of the applicants. In addition to sentencing Sandell for manslaughter, the judge also sentenced him for two counts of trafficking in a controlled drug to which he had pleaded guilty. The prosecution particularised Count One as concerning 3.19 grams of a substance containing methylamphetamine. However, this was in error. The respondent has since identified that the correct amount of methylamphetamine was 2.09 grams. Count Two particularised clonazepam as the drug. However, it became apparent to the applicant Sandell in the course of preparation for this appeal that clonazepam is not a controlled substance and that his possession of that drug disclosed no offence. 18 With respect to Sandell’s conviction on his plea of guilty to manslaughter, the judge proceeded on the basis that Sandell was a prime mover in the joint enterprise. He indicated a starting point of 13 years. He reduced that by five per cent on account of the guilty plea to 12 years, four months and seven days, which he backdated to commence on 29 August 2020. In respect of the two trafficking offences, the judge identified notional starting points of four years and six months for each. He made both sentences concurrent. He reduced that period by five per cent for the pleas of guilty and imposed a single sentence of four years, three months and 10 days. 19 The judge said that the manslaughter was linked to Sandell’s trafficking offending and committed at the same time. In recognition of the link and the common timing, he made one year, six months and 10 days of the trafficking offences concurrent with the manslaughter sentence. This resulted in a total head sentence of 15 years, one month and seven days. The judge indicated that having reflected on the outcome, he did not regard any reduction of that period as appropriate. 20 The judge recognised he was required to fix a non-parole period of at least four-fifths of the head sentence for manslaughter. He expressly considered the trafficking offences, Sandell’s pleas, his age, background, prospects of rehabilitation and the balance of his personal circumstances. He fixed a non-parole period of 11 years and six months. 21 The judge proceeded on the basis that Mazomenos was also a prime mover in the incident. He was satisfied that the starting point for Mazomenos should be the same as for Sandell. He set a head sentence of 13 years. He was required to set a non-parole period of at least four-fifths of the head sentence. He expressed regard to Mazomenos’s age, personal circumstances and prospects of rehabilitation. He 7 [2023] SASC 85 at [315]. 8 [2023] SASC 85 at [316]. -- 9 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 6 fixed a non-parole period of 10 years and six months. He backdated the sentence to commence on 17 September 2020. 22 The judge accepted that Pinnington was not the prime mover but had acted in support of a person who Mr Codea had disparaged on account of his gang membership (Mazomenos). Pinnington had been a part of the joint enterprise only for about an hour and a half before the attack. Pinnington had kicked Mr Codea to the head. The judge expressed optimism about Pinnington’s prospects of rehabilitation and noted that he had a more limited criminal history. The judge fixed a head sentence of 11 years. He was again required to fix a non-parole period of at least four-fifths. He set a non-parole period of eight years and 10 months. He backdated the sentence to commence on 17 September 2020. 23 The judge sentenced Nicholls on the basis that he was not a prime mover in the joint enterprise, and that he may not personally have struck Mr Codea. Mr Nicholls was also a part of the joint enterprise for only about an hour and a half before the attack. The judge expressed reservations about Nicholls’s rehabilitation prospects, given his extensive past offending and antisocial behaviour. He considered that he was not a candidate for leniency. Nicholls was also prepared to act in support of a person who Mr Codea had disparaged on account of his gang membership. Nicholls was interested in joining that gang. The judge sentenced Nicholls to a head sentence of 12 years. Again, the non-parole period was required to be at least four-fifths. He identified a starting point for the non-parole period of nine years and seven months. 24 The judge backdated Nicholls’s sentence to commence on the expiry of a previous sentence, 30 November 2021. He gave credit for time spent in custody, thereby reducing the head sentence and non-parole period by six months and 21 days. On that basis, he fixed a head sentence of 11 years, five months and nine days with a non-parole period of nine years and nine days, backdated to commence on 30 November 2021. The issues arising on appeal 25 The issues raised by the Notices of Appeal overlap. Broadly speaking, the issues arising on the appeal can be described as follows: • whether the sentences were manifestly excessive (all applicants); • whether the judge failed, in sentencing Sandell and Mazomenos for manslaughter, to apply the parity principle; • whether the judge erred in sentencing on the basis that the applicants intended to cause ‘serious harm’ and thereby imported a non-existent mental element -- 10 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 7 into the offence of manslaughter by unlawful and dangerous act, and otherwise breached the De Simoni principle9 (Sandell and Mazomenos); • whether it was open on the evidence to find that Pinnington intended to cause ‘serious harm’; • whether the judge erred in failing to have proper regard to the applicants’ disadvantaged backgrounds, in accordance with the principle in Bugmy v The Queen10 (Sandell and Mazomenos); • whether the judge erred in not accepting that an offer by Mazomenos to plead guilty to manslaughter was a matter of mitigation and evidence of genuine remorse, and erred in his assessment of prospects of rehabilitation; • whether the judge erred in his treatment of whether Pinnington was associated with the Finks motorcycle club; • whether the judge erred in sentencing Sandell on the basis that he was responsible for each blow; • in circumstances where Sandell’s conviction for trafficking a controlled drug (clonazepam) must be set aside as no offence was disclosed, whether a different sentence should be imposed in respect of the remaining conviction for trafficking; • in circumstances where the judge sentenced Sandell for trafficking methylamphetamine on an incorrect factual basis, whether this Court should set aside that sentence and resentence Sandell; • whether the judge failed to adequately bring to account Sandell’s trafficking offending as part of the same course of conduct as the manslaughter offence; • whether the judge erred in imposing a sentence on Sandell that accumulated the sentences for manslaughter and trafficking in the absence of an order that the sentences be served cumulatively; • whether the judge erred in failing to have proper regard to the principle of totality (Sandell). Background The judge’s ultimate findings of fact relevant to the complaints on appeal 26 The prosecution case at trial was that the defendants engaged in a joint criminal enterprise to murder Mr Codea by intentionally inflicting on him GBH in a premediated ambush in the Adelaide High School car park. The prosecution case 9 R v De Simoni (1981) 147 CLR 383. 10 (2013) 249 CLR 571. -- 11 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 8 of motive was based on evidence of communications extracted from encrypted messaging platforms on various mobile phones from 16 August 2020. Certain of those communications on the platform ‘Discord’ suggested that Sandell had been dishonest in connection with drug dealing. They disparaged the Finks motorcycle club and included a reference to Mazomenos as a ‘finks dog’. The judge found that by 26 August 2020, Sandell was satisfied that Mr Codea was responsible for these communications.11 27 The judge was satisfied that the attack was retribution for what the defendants believed to be Mr Codea’s publication of details of their involvement in the drug world, as well as what they perceived to be Mr Codea’s disparagement of the Finks motorcycle club.12 28 The judge gave careful and detailed reasons for his findings that each defendant participated in a joint enterprise at least to assault Mr Codea. He expressed his conclusions about the joint enterprise as follows:13 I am satisfied beyond a reasonable doubt Mr Sandell and Mr Mazomenos entered into a joint enterprise to at least assault specifically Mr Codea on the night of 28 August 2020 by no later than about 7.40pm that evening, likely at some earlier time. By 7.40pm, on the evidence, Mr Sandell first expressed his belief that ‘Kain’ would attend with others. That belief must have been the result of some communication(s) with Mr Mazomenos. Mr Nicholls and Mr Pinnington arrived in the city at about 8.02pm and met with Mr Mazomenos shortly thereafter. On the evidence of Ms X and the CCTV footage, I am satisfied beyond a reasonable doubt Mr Nicholls and Mr Pinnington had joined the joint enterprise to at least assault Mr Codea by no later than shortly after they met Mr Mazomenos at his apartment. Mr Nicholls and Mr Pinnington may not have known who Mr Codea was. Given the above, I am satisfied beyond a reasonable doubt that the fatal blow(s) was a kick and/or a punch deliberately delivered by at least one of the four defendants and that the fatal blow(s) was unlawful.14 That being so, and given the separate findings that each defendant, separately considered, joined a joint enterprise to at least assault Mr Codea before entering the car park and participated, I am satisfied beyond a reasonable doubt that each defendant is responsible for the deliberate and unlawful fatal blow(s). (Footnote in original) 29 The judge then turned to whether the agreement was to cause GBH. While he accepted that the joint enterprise may have been to cause Mr Codea GBH, he ultimately was not satisfied of that fact beyond a reasonable doubt. He reviewed the surrounding and preparatory circumstances of the assault carefully, and in 11 [2023] SASC 85 at [229]. 12 [2023] SASC 85 at [270]-[281]. 13 [2023] SASC 85 at [282]-[283]. 14 As stated above, I have used the term ‘fatal blow(s)’ to refer to the blow(s) which was (or were) a substantial cause of the death of Mr Codea. -- 12 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 9 particular, the fact that all four defendants had likely become aware of the motive that Sandell and Mazomenos had for attacking Mr Codea. He went on, however:15 That said, I am not satisfied that the motive of the Discord messages being known by all four defendants sheds any more light on whether the agreement was to cause GBH than what occurred in the car park. Put another way, in my view, in all the circumstances, the motive is no more consistent with a plan to cause GBH than it is with a plan to assault Mr Codea with some lesser intention. A plan to punish and/or silence Mr Codea was something that could have been achieved without causing GBH being part of the joint enterprise. 30 The judge then laid out his dispositive reasoning as to why he was not satisfied that the agreement was to cause GBH:16 In my view, the matters of particular significance in evaluating whether the prosecution has established beyond a reasonable doubt that the joint enterprise was to cause GBH are that: two men delivered blows as part of a co-ordinated, well planned attack from both sides which was designed to take Mr Codea by surprise and limit his opportunity to protect himself; the blows were directed at the head over a period of about 10 seconds; the blows were punches and kicks delivered with force; and Mr Codea was particularly vulnerable as he was seated in the vehicle with his seat belt on. As a matter of common sense, the head is a vulnerable part of the body. That the attack was at that part of the body is particularly important to the issue of what had been agreed. While the above matters are consistent with the joint enterprise being to cause GBH and must be evaluated in combination, I have been left with a reasonable doubt about that. I am not satisfied that conclusion is the only rational inference on the whole of the evidence available to be considered in the respective cases of the defendants. In my view, it is reasonably possible that the joint enterprise fell short of being to cause GBH. I am satisfied that may have been the scope of the joint enterprise, but that is not enough. I am satisfied the joint enterprise entered into by all defendants, and participated in by all defendants, was to cause serious harm. That is also not enough. I cannot exclude as a reasonable possibility that the agreement was to assault Mr Codea in a serious way but without the agreement being to cause GBH. (Emphasis added) 31 Similarly, the judge concluded that the intention of the two men who struck Mr Codea, one of whom was Pinnington and the other of whom was either Mazomenos or Nicholls, was to cause serious harm. However, he was unable to be satisfied beyond reasonable doubt that every blow that might have struck Mr Codea was inflicted with the intention of causing GBH.17 It was therefore unnecessary for him to consider whether, as against each defendant, the defendant foresaw that GBH might intentionally be inflicted and, notwithstanding that foresight, participated in the joint enterprise to assault Mr Codea.18 15 [2023] SASC 85 at [298]. 16 [2023] SASC 85 at [299]-[300]. 17 [2023] SASC 85 at [305]. 18 [2023] SASC 85 at [307]. -- 13 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 10 The judge’s expressed findings of fact on sentencing 32 The judge referred to his findings of fact in his Reasons for Verdict when it came to sentencing the four defendants. He said: The circumstances in which you caused the death of Mr Codea, during a joint enterprise to assault him, are set out in my judgment. I found beyond a reasonable doubt the joint enterprise was to cause serious harm. 33 The judge expressed satisfaction beyond reasonable doubt that Sandell and Mazomenos were the organisers of the joint enterprise. He found they were involved in the joint enterprise for a greater period of time than the other two, in that they had joined together to take violent action with respect to the messages on Discord before Pinnington and Nicholls became involved. 34 A few days before the attack on Mr Codea, Mazomenos had, with the encouragement of Sandell, attacked another man. When they came to believe that man was not responsible for the messages, they turned their attention to Mr Codea. The judge said expressly that they were not to be sentenced for that first assault. However, he observed that this illustrated that Sandell and Mazomenos had plenty of time to reflect and to decide not to act violently in response to the messages. He also identified the earlier attack as being relevant to the leniency that may be extended to Sandell and Mazomenos. 35 The judge found that Pinnington and Nicholls were involved by no later than about an hour and a half before the attack, when they arrived in the city. He observed that this gave them time to reflect on the enormity of what they were planning. As to the attack itself, he said: As I have said, the attack on Mr Codea was a cowardly one. Mr Codea was attacked while seated in his car, and with his seatbelt on. He was taken by surprise. He was attacked from both sides. He was not given any opportunity to defend himself. Having attacked him, you then left him in the car. 36 The judge noted that Mr Codea was only 25 years old. His family and close friends did not provide victim impact statements, but the judge proceeded on the basis that those close to Mr Codea were devastated by his death. The applicants’ personal circumstances 37 At the time of sentencing in 2023, Sandell was 26 years old. He had received a suspended sentence for trafficking in 2017. The judge noted that Sandell had pleaded guilty for manslaughter at the commencement of the trial. Sandell had written a letter of apology and expressed remorse for causing Mr Codea’s death. The judge accepted that Sandell had some remorse but given the lateness of the plea, was satisfied that his expressed remorse was also motivated by a concern for himself. 38 It is necessary to set out the judge’s full account of Sandell’s troubled background: -- 14 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 11 Your background excites sympathy. When very young you witnessed the person who you thought was your father commit suicide. Your mother passed you into the care of the state when you were only six years old. As a child you suffered chronic emotional neglect, abandonment and an absence of role models. You were moved around and did not receive the care which all children need. By the age of seven or eight you were in foster care. You were in group residential care by the time you were aged nine. You report being sexually abused. By the age of 15 or 16 you were in a Housing Trust home. You say that you were not provided with educational and vocational support. Consistent with someone from a deprived and unstable upbringing you went to many schools. You completed year 10 and left school in year 11. You commenced using drugs when you were 15. While in custody you are prescribed an opioid replacement. You have expressed a willingness to engage in drug rehabilitation. You have had employment in the construction industry and you have been working while in custody. I have a report from Dr Lim. In her opinion, you are at risk of reoffending. This includes a risk of violent offending. However, Dr Lim does not believe you are inherently violent. In the opinion of Dr Lim you meet the criteria for the following psychological conditions: drug use disorders, impulse control disorder and antisocial personality disorder. 39 Mazomenos was 27 years old at the time of sentencing. He had prior convictions for an assault and other less serious offences. The judge noted that Mazomenos’s offender history was relevant to the leniency he could give him. As to Mazomenos’s background, the judge said: Your upbringing was also dysfunctional. Your father was not a good role model. He was a gang member and imprisoned until you were about 16 years of age. Your mother’s life has also been dysfunctional at times. She has abused alcohol and drugs. Your mother commenced a relationship with your stepfather when you were about four years of age. You say your stepfather was violent, used drugs and rejected you. You also say that you were sexually abused as a child and that there is a link between that and your drug use. You were evicted from the family home when you were 15. By the time you were 16 you had reconnected with your father. He introduced you to the life of a gang member. You also used drugs with your father. You joined his gang and moved with him to a second gang, the Finks. You have said that you want to leave that gang and have done what you can about that. I am unable to make any finding about how genuine you are about that. You commenced using drugs when you were 16. You stopped school at the end of year 11. You were homeless by the age of 19. You have been described as having an excellent work history when you have worked, however you had been unemployed for about a year before the death of Mr Codea. As a high security prisoner your employment options in custody have been limited. Your counsel referred to increased lockdowns during COVID-19, a matter of only passing relevance for you and the other three defendants. 40 The judge noted that Mazomenos had good prospects for future employment and received positive references from a former employer. 41 The judge received a psychological report from Mr Balfour. In respect of this report, he said: Mr Balfour has described you as the adult psychological casualty of a dysfunctional and traumatic childhood. In his opinion you suffer from chronic depression and anxiety. You have made suicide attempts, you have been diagnosed with a borderline personality -- 15 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 12 disorder and a complex post-traumatic stress disorder. These are issues that on the material before me can be dealt with in prison. Mr Balfour has also said that you were under the influence of drugs at the time of the offence. If that is true it did not impair your ability to behave in a considered and planned way. If you were affected by drugs I reject it as a matter in mitigation. 42 Mazomenos had offered to plead guilty to manslaughter prior to trial, an offer rejected by the Director. Unlike Sandell, he did not enter that plea. In this regard, the judge said: You read a letter of apology. You say that you offered to plead guilty to manslaughter before trial but that offer was rejected. I was not provided with information of any substance about the basis of that offer other than the legal basis. What is clear is that you did not plead guilty to manslaughter although you had the opportunity. At trial, through your counsel, you did not give up on the possibility of a complete acquittal. In submissions on sentence your counsel maintained that your position was that you had gone to the car park to talk to Mr Codea and things escalated. I have rejected that beyond a reasonable doubt. As a general proposition an offer to plead guilty to an automatic alternative offence which is not followed up by that plea is not a matter of great significance in mitigation. In your case it has no significance. You have expressed remorse but given that you maintained a plea of not guilty I am satisfied that expression of remorse reflects your concern about the situation in which you find yourself, as well as some genuine remorse for your conduct. 43 Pinnington was 26 years old at sentencing. He did not have a significant offender history. He grew up in a stable family who continued to support him. The judge recorded a submission that Pinnington had ‘explored the possibility of a plea to manslaughter’ but an offer to do so was not accepted. He did not enter that plea. As with Mazomenos, the judge said that he did not regard the offer to plead to be of any significance in mitigation. The judge continued: You read an apology. The remorse that you express was late, it came after the trial. The letter of apology was written after the verdict. I accept that you have some remorse but I am also satisfied that your apology is motivated by a concern for yourself. You left school at the end of year 12. You were using drugs. You were behaving erratically, including behaving aggressively. For a time you moved away from such behaviours and commenced employment. I have references from two past employers. You have been described as reliable, conscientious and honest. Both former employers have offered to help you in the future. You have expressed a willingness to learn from your mistakes and to engage in reform. 44 After addressing the personal circumstances of Nicholls, the judge then sentenced the defendants as indicated above. -- 16 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 13 The appeal Whether the judge failed, in sentencing Sandell and Mazomenos for manslaughter, to apply the parity principle (Sandell Ground 2, Mazomenos Ground 2) 45 The judge selected the following starting points for the head sentences for manslaughter: Sandell – 13 years; Mazomenos – 13 years; Pinnington – 11 years; Nicholls – 12 years. 46 In Lowe v the Queen,19 Mason J described the principle to be applied on appeal in cases of discrepancy between sentences, described broadly as the principle of ‘parity’:20 It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate. 47 In the same case, Brennan J said:21 The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. 48 Whether there is disparity calling for interference is an objective question.22 It is necessary to take account of all the circumstances of the offenders. What is required is ‘due proportion’ between sentences, which is to be determined having regard to the different circumstances of each offender.23 Different sentences may be imposed on like offenders to reflect their respective degrees of culpability or their differing circumstances.24 49 The head sentence starting points for Sandell and Mazomenos were one year greater than that for Nicholls and two years greater than that for Pinnington. Sandell approached his complaint of disparity by reference to relevant considerations that he submitted were more favourable to him than to his co-accused. These considerations were age, participation in the offending and links to outlaw motorcycle gangs. 50 As to the offenders’ age, Sandell was 23 at the time of the offending and 26 at sentencing. Pinnington was the same age. Nicholls was 32 at sentencing and therefore approximately 29 at the time of the offending. Mazomenos was 24 as at 19 (1984) 154 CLR 606. 20 Lowe v The Queen (1984) 154 CLR 606 at 613-614. 21 Lowe v The Queen (1984) 154 CLR 606 at 617. 22 Postiglione v The Queen (1997) 189 CLR 295 at 323. 23 Postiglione v The Queen (1997) 189 CLR 295 at 301–302. 24 Cromb v The King; Pay v The King [2024] SASCA 8 at [39]. -- 17 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 14 the offending and 27 at sentencing. Counsel for Sandell did not develop any submission as to the significance of these ages on their own to the question of parity. Nevertheless, age was one matter relevant to each offenders’ relative prospects of rehabilitation. Nicholls was the oldest of the four and had the most significant criminal history. The other three were all roughly the same age. 51 Sandell emphasised that the judge’s findings with respect to the participation of each in the assault included that Sandell did not physically participate in the assault. That must be taken in the context, however, that the actions of the others were all attributable to Sandell as a participant in the joint enterprise. Pinnington was found to have kicked Mr Codea from one side of the car. The judge was unable to determine what acts were directly attributable to Mazomenos or Nicholls. 52 That factor cannot be divorced, however, from the findings that Sandell and Mazomenos were the organisers of the attack. They had joined together to take violent action in response to the Discord messages, well before Pinnington and Nicholls had become involved. Those messages included disparagement of Sandell’s drug trading. Mazomenos had attacked another man in the days before on account of the messages, with Sandell’s encouragement. As the judge found, Sandell and Mazomenos had plenty of time to reflect and decide not to act violently. The judge quite rightly highlighted this matter as being relevant to the leniency which could be extended to them. 53 On the topic of association with outlaw motorcycle gangs, Sandell pointed to ‘his lack of any tie to an outlaw motorcycle gang’ as a point of distinction relevant to the prospects of his rehabilitation. Mazomenos was a member of the Finks motorcycle club. Nicholls admitted that there was a prospect of him joining the Finks in the future. The judge was satisfied beyond reasonable doubt that Pinnington was associating with the Finks. 54 The judge emphasised that these three were not being sentenced for their connection to the Finks but considered the association of each to be relevant to their prospects of rehabilitation. 55 The judge did not know if Sandell’s connection with the Finks went beyond simply being friends with a member, Mazomenos. However, he was satisfied beyond a reasonable doubt that Sandell knew that the other three were going to be involved in the attack for motives relating to the Finks, and for Mazomenos being called a ‘Finks dog’. 56 On the topic of offender histories, Nicholls had a poor history, which included convictions for firearms offences and offences of violence. Sandell’s only offence of significance was a trafficking offence in 2017, for which he received a suspended sentence of imprisonment upon entering into a bond. Pinnington had a slightly longer offender history, which included firearms offending. Mazomenos had a longer history of mostly less serious offences, including several failures to comply with a bail agreement, driving offences and offences of drug possession. -- 18 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 15 57 Sandell also pointed to the offenders’ various backgrounds, emphasising his own deprived and unstable upbringing and contrasting this with the backgrounds of the others, summarised above. He placed the greatest emphasis on the fact that he entered a plea of guilty to manslaughter at the commencement of the trial and wrote a letter of apology. While each other offender had expressed a degree of contrition and remorse, Sandell pointed to the scepticism the judge expressed in their cases to the effect that this was at least partly motivated by concern for themselves. 58 The difficulty for Sandell, insofar as he sought to compare his own expressions of remorse with this treatment of the others by the judge, is that the judge also said in his case: I accept that you have some remorse for what happened but given the lateness of your plea I am satisfied that your claims of remorse are also motivated by a concern for yourself. 59 Sandell also traversed the judge’s views about the prospects of rehabilitation of each offender. The judge accepted that Sandell had some prospect of rehabilitation but was guarded about his prospects with respect to drug offending, which in turn gave rise to a risk of violent offending on his part. The judge expressed reservations about Mazomenos’s prospects of rehabilitation. He expressed greater optimism with respect to Pinnington’s prospects. He was guarded about Nicholls’s prospects. 60 Mazomenos pointed to the judge’s failure to be satisfied beyond reasonable doubt that he had inflicted any of the blows on Mr Codea. He contrasted his own deprived upbringing with Pinnington’s circumstances of greater support, where Pinnington was the only one the judge could be satisfied had physically inflicted blows. 61 The disparities between the sentences were relatively slight. Neither Sandell’s nor Mazomenos’s submissions grappled with the objective effect of all relevant considerations, which pointed both towards and away from leniency. In the case of each, their organising role and much longer participation in the joint enterprise, with ample time to reflect, were significant considerations. Sandell’s plea of guilty was accounted for by the discount applied. The judge accepted that Sandell was remorseful to a degree but tempered that acceptance with scepticism regarding Sandel’s concerns for himself. He had reservations about the prospects of rehabilitation of Mazomenos. He accepted that Sandell had some prospects of rehabilitation but remained guarded. 62 In our view, when all the circumstances are viewed together, it is not reasonably arguable that either Sandell or Mazomenos could have a justifiable sense of grievance about their slightly longer sentences. There was good reason to impose longer sentences on them, notwithstanding that some matters spoke comparatively in their favour. In our view, this complaint is without merit. -- 19 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 16 63 We would refuse leave to appeal on Ground 2 (Sandell) and Ground 2 (Mazomenos). Whether the judge erred in sentencing on the basis that the applicants intended to cause ‘serious harm’ (Sandell Ground 3A, Mazomenos Ground 3, Pinnington Ground 2) 64 We have highlighted, earlier in these reasons, that the judge found it was reasonably possible that the joint enterprise fell short of being to cause GBH. He was satisfied that this may have been the scope of the joint enterprise but accepted that that was not enough. His state of satisfaction went only so far as to find that the joint enterprise, entered and participated in by all defendants, was to cause serious harm. At sentencing, he reiterated that he made this finding beyond reasonable doubt. 65 Each applicant complained of this expression in the sentencing remarks. It is convenient to address first the submissions of Sandell, which Mazomenos effectively adopted. Sandell and Mazomenos 66 Sandell observed that as he was found not to have struck the deceased personally, he could only be sentenced on the basis of a joint enterprise to commit manslaughter pursuant to an agreement to assault. However, the judge had found beyond a reasonable doubt that the joint enterprise to which he was a party was a joint enterprise to cause serious harm. By this finding, Sandell submitted, the judge added to the offence of manslaughter a mental element that did not exist. Manslaughter by unlawful and dangerous act does not carry any mental element to cause harm, let alone any degree of harm. 67 The erroneous importing of this mental element, Sandell submitted, ‘necessarily’ led to the imposition of a heavier sentence. He submitted that in consequence, he was punished for conduct which necessarily fell outside the scope of the offence for which he had been convicted. That constituted, in his submission, a breach of the principle explained in R v De Simoni:25 If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that it would also constitute personal violence within s. 393. On the other hand, if the actual violence resulted in wounding, the trial judge should not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter. 25 (1981) 147 CLR 383 at 394 (Gibbs CJ). -- 20 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 17 68 The principle in R v De Simoni does not prevent a court from taking into account the surrounding circumstances of an offence when assessing the seriousness of the offending. For example:26 In some cases there may be a degree of difficulty, and perhaps artificiality, in determining where the circumstances of the offending end, or must otherwise be ignored, on the basis that to take them into account would be to punish the offender for an offence of which he or she has not been convicted. In the present case, the R v De Simoni principle operated to prevent the appellant being punished for unlawfully entering the victim’s home knowing that (or being reckless as to whether) the victim was at home. But it did not require that the sentencing judge ignore that the assault took place in the context and circumstances I have described. (Footnote omitted) 69 In Lees v The Queen, this Court observed:27 Similarly, in the present case, the appellant was not to be punished for theft of the monies that were taken through the facilities that the offending created. However, money was diverted, much of it stopped or recovered, and some lost. These facts and their broader impact can properly be seen as surrounding circumstances that expose the serious and sustained nature of the offending as charged and its capacity to cause real harm. 70 Section 11(1)(a) of the Sentencing Act 2017 (SA) (‘Sentencing Act’) requires a court, when determining sentence, to take into account ‘the nature, circumstances and seriousness of the offence’. 71 There are two obvious fallacies inherent in Sandell’s submission. First, Sandell was unable to identify the more serious offence in respect of which he had been sentenced by the purported importation of this mental element. The only immediately apparent offence that imports the mental element of an intention to cause serious harm is the offence of causing serious harm, intending to cause serious harm, proscribed by s 23 of the Criminal Law Consolidation Act 1935 (SA). When a person dies as a result of the offending, there is no offence of causing death, intending to cause serious harm. The contention that the applicants were sentenced for a more serious offence, contrary to the principle in R v De Simoni, cannot be sustained. 72 Faced with this observation at the hearing, Sandell retreated to a broader proposition to the effect that a person can only be sentenced for the mental element that is the subject of the offence for which they are being sentenced. This exposed the second fallacy, namely that the finding of fact that the joint enterprise was to cause serious harm necessarily imported a foreign mental element into the offence itself. 73 The judge found that the joint enterprise was to cause serious harm in the context of explaining his failure to be satisfied, beyond reasonable doubt, that the 26 Hassan v The Queen [2022] SASCA 56 at [66]. 27 Lees v The Queen [2022] SASCA 93 at [52]. -- 21 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 18 joint enterprise was to cause GBH. The offence of manslaughter carried no specific mental element, and there existed no more serious offence that answered the description of manslaughter with such an additional mental element. In those circumstances, this finding of the intention of the participants in the joint venture can only have been a finding of fact that was relevant to assessing the seriousness of the offending. 74 Sandell’s contention breaks down entirely on account of this. The judge might have found, for example, that the intention was simply to cause harm. That would have made the offending less serious. The character of the harm intended by a joint enterprise is a factual circumstance that is obviously relevant to the seriousness of the conduct causing death. 75 To suggest that the level of harm agreed to in the joint enterprise was prohibited from consideration as a relevant integer of the seriousness of the offending, because it imported an unknown element of the offence, is fallacious. The finding that there was a shared intention to cause serious harm does not amount to characterising that intention as an element of the offence. Moreover, the judge did not purport to characterise it as such. In the first instance, Sandell’s submission attributed to the judge something that he plainly did not do. 76 It would be an error to characterise the offence as having this mental element. However, not only did the judge not do this, but in addition, Sandell was unable to point to any consequence of that putative error, other than to make the presumptive submission that he therefore received a higher sentence than he should have. However, a higher sentence was a natural consequence of the finding of fact that the intention was to cause serious harm. The real effect of Sandell’s submission was that it was impermissible for the judge to sentence on the factual basis that the joint enterprise was to cause serious harm because to do so necessarily imported a foreign element into the offence. 77 For the above reasons, the complaint is untenable in both its premise and its logic. There is no basis for the contention that the judge treated this finding of fact as constituting an element of the offence of manslaughter. The found fact that the joint enterprise was to cause serious harm informed the seriousness of the offending. The judge was required to take that fact into account pursuant to s 11(1)(a) of the Sentencing Act. 78 We would refuse leave to appeal on Grounds 1.1 and 3A (Sandell) and Ground 3 (Mazomenos). Pinnington 79 Pinnington raised a different complaint about the finding that the joint enterprise was to cause serious harm. He submitted that it was not open to the judge to make that finding of fact. He accepted that his burden was to show that this finding of fact at trial was unreasonable. -- 22 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 19 80 The judge’s finding that the intention was to cause serious harm was based on findings of fact which he summarised at trial in determining whether the prosecution had established beyond reasonable doubt an intention to cause GBH:28 In my view, the matters of particular significance in evaluating whether the prosecution has established beyond a reasonable doubt that the joint enterprise was to cause GBH are that: two men delivered blows as part of a co-ordinated, well planned attack from both sides which was designed to take Mr Codea by surprise and limit his opportunity to protect himself; the blows were directed at the head over a period of about 10 seconds; the blows were punches and kicks delivered with force; and Mr Codea was particularly vulnerable as he was seated in the vehicle with his seat belt on. As a matter of common sense, the head is a vulnerable part of the body. That the attack was at that part of the body is particularly important to the issue of what had been agreed. 81 The attack was witnessed by Ms X, who was in the back seat of Mr Codea’s car when the attack commenced and who returned to help Mr Codea after the attack. Pinnington relied on aspects of Ms X’s evidence as well as the evidence of Dr Heath, a pathologist at the Forensic Science Centre, and Dr Ovenden, a neurosurgical registrar. Where the evidence of the medical specialists differed, the judge preferred the evidence of Dr Heath, which Pinnington accepted was open to him to do. 82 Pinnington relied on the following matters and submissions: • Dr Heath said that the primary injury to Mr Codea was a subdural haemorrhage, which could occur with a relatively trivial degree of trauma, or even without a blow to the head. He was not able to say how many blows were delivered or the direction from which they came. Pinnington submitted that this evidence did not assist with the intention of those delivering the blows. Ms X said that when she returned to the car, Mr Codea was still mumbling and attempting to start his car. He was upright in his car and still in his seatbelt. Pinnington submitted that there was no basis for any person to think that Mr Codea had been injured as seriously as he had been; • Ms X described a single male on the passenger’s side, kicking or attempting to kick Mr Codea, and two males on the driver’s side, one of whom was punching or attempting to punch Mr Codea. She described the punches as forceful and the kicks as ‘not fairy taps’. Ms X left the car after about 10 seconds. It was reasonably possible that the attack lasted no longer; • Ms X described Mr Codea as attempting to defend himself by covering his head with his arms. This left open the possibility that some of the blows struck elsewhere; • the judge found that at least one punch and one kick made contact with Mr Codea’s head. However, he also said that he was unable to ‘conclude how many blows of each type connected at the part of the body to which the blows 28 [2023] SASCA 85 at [299]. -- 23 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 20 were aimed’.29 Pinnington submitted that these findings were inconsistent. Dr Heath said that death might have been caused by a single blow and could not say from which side. Pinnington submitted that it was not open to the judge to find any more than that at least one blow from the assailants made contact with Mr Codea’s head. He submitted that the judge’s impermissible finding had the effect of overstating the effectiveness of the attack; • while Pinnington accepted that it was open to find that some of the blows were aimed at Mr Codea’s head, he submitted it was not open to find that the kicks were. He submitted that the evidence, including the fingerprint evidence on the passenger side door, was more consistent with the kicks being delivered generally. Even if a limited number of kicks was aimed at the head (given the short space of time) it did not necessarily follow that Pinnington was intending to do serious harm to Mr Codea. Pinnington submitted that the vulnerability of the head ‘does not militate solely in favour of the conclusion that the agreement was to inflict serious harm’; • the judge had regard to the fact that the attack was coordinated and against a vulnerable person. Pinnington submitted that these factors did not speak in favour of any particular intention, only of a plan to assault. The happenstance of Mr Codea’s vulnerability did not support a plan to cause serious harm, as opposed to the assailants taking care to ensure they were not at risk of exposure to injury themselves; • the judge said:30 Put another way, in my view, in all the circumstances, the motive is no more consistent with a plan to cause GBH than it is with a plan to assault Mr Codea with some lesser intention. That being the case, Pinnington submitted that it was difficult to see why the judge settled on an intention to cause serious harm; • the length of the attack, which may have been only 10 seconds, favoured the conclusion that the assailants intended only to assault Mr Codea. The attackers could not have known the extent of the injuries when they desisted. It was ‘more likely’ that they desisted when the desired result of teaching Mr Codea a lesson had been achieved; • while the judge recognised that the absence of weapons had ‘some limited significance in evaluating the nature of the agreement’31, that absence was much more significant given the planned nature of the assault. That was a 29 [2023] SASC 85 at [109]. 30 [2023] SASC 85 at [298]. 31 [2023] SASC 85 at [294]. -- 24 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 21 powerful factor supporting the proposition that the assailants did not intend to cause serious harm. Mazomenos, at least, could have brought weapons. 83 Pinnington submitted that in light of these circumstances, the case for an intention to cause serious harm was no greater than the case for an intention to cause GBH. 84 This submission must be approached from the perspective that the finding of an intention to cause serious harm was simply the description that the judge attached to his finding of the applicants’ intention. 85 That finding of fact was, by its nature, necessarily an inferential finding of fact that was to be made on the whole of the evidence. 86 As the respondent submitted, the prosecution case established that Mr Codea was the subject of a coordinated surprise attack. Mr Codea was seated in his vehicle with his seat belt on. The evidence was that kicks and punches were delivered while Mr Codea was so restrained. The judge found:32 I accept the evidence of Ms X that the punches were directed at the head. When asked if she had formed an impression as to the part of the body the person punching was trying to connect with, I found her response compelling: ‘Yeah his head, his upper body. It wasn’t shots to the ribs, it was shots to the head’. I am satisfied that she formed that impression because that is what she saw. At times in her evidence, Ms X expressed uncertainty about whether any kick connected with the head of the deceased. For example, she said she was ‘pretty sure’ that kicks connected with the head and that she could not remember whether the foot connected with the head. I was impressed with the care with which Ms X took not to overstate her level of confidence about what she had seen. Nonetheless, I am satisfied that the head was the part of the body at which the kicking was directed. I accept her evidence that the person kicking ‘could have been making contact with his shoulder… could have been making contact with the head’. The shoulder is immediately adjacent to the head. The attack was immediate and from both sides. I am satisfied the kicks were directed at the head. (Footnotes omitted) 87 Contrary to Pinnington’s submission, the judge’s finding that at least one punch and one kick made contact with Mr Codea’s head was not inconsistent with his inability to conclude how many blows of each type connected to the part of the body to which the blows were aimed. The first finding was a finding as to the minimum number of blows that connected. He was simply unable to make a finding beyond that. The fact that only one blow may have caused death said little about how many connected, still less about where the blows were aimed, about which Ms X gave clear evidence. As the respondent observed, as well as the subdural haemorrhage, Mr Codea presented with nine other recent injuries to the forehead, eye, earlobe, neck and scalp. 32 [2023] SASC 85 at [111]-[112]. -- 25 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 22 88 Further, the narrative finding of what occurred in the carpark was highly relevant to intention. As the judge found:33 Further, in any event, I am satisfied that the way the incident unfolded at AHS establishes that Mr Sandell must have expected any assault to be a serious one before Mr Sandell arrived in the car park with Mr Codea. On the evidence of Ms X, I am satisfied that Mr Sandell exited the Toyota knowing an attack was to occur and to permit that attack to be carried out by others. That is the obvious inference from Mr Sandell exiting the Toyota, the immediacy of what followed and that blows were delivered by more than one person. 89 The matters Pinnington referred to were open to him to rely on at trial in support of a submission about the scope of the joint enterprise. However, as submissions on appeal they make no inroads into the reasonableness of the judge’s finding of fact that the intention of the joint enterprise was to cause serious harm. That finding was manifestly open. 90 We would refuse Pinnington leave to appeal on Ground 2. Whether the judge erred in sentencing Sandell on the basis that he was responsible for each blow to the head (Sandell Ground 3) 91 Sandell argued this ground as an adjunct to Ground 3A, addressed above. The judge found that Sandell and Mazomenos were the organisers of the joint enterprise. When it came to sentencing, he said: With respect to the manslaughter each of you played different roles, but each of you is responsible for the conduct of the others from the point that you joined the joint enterprise. That said, there are reasons to distinguish between you which go beyond your different personal circumstances. Mr Sandell and Mr Mazomenos, I am satisfied beyond a reasonable doubt that you were the prime movers behind this joint enterprise. The two of you were involved for longer in a plan to take violent action over the Discord messages. There is no sentencing standard for manslaughter. This is a serious example of that offence. That is not to overlook that no weapon was used, or that the attack was over as little as about 10 seconds. Your conduct was well-planned. You combined to attack Mr Codea when he was vulnerable. That attack was directed at his head. That Mr Sandell did not deliver a blow, and that I could not find beyond a reasonable doubt if it was Mr Mazomenos or Mr Nicholls who punched Mr Codea, are not matters of significance in sentencing. You are all responsible for each and every blow. 92 Sandell submitted that the evidence and the judge’s findings ‘told against’ Sandell being party to an agreement to assault that contemplated a targeting of, or administration of, one or more blows to the head. In this regard, he relied on the following matters. 33 [2023] SASC 85 at [260]. -- 26 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 23 93 First, the judge found, by reference to messages Sandell sent to his then partner Ms Tassone, that Sandell expected the result would be a serious one.34 He then went on to consider whether Sandell’s state of mind about the seriousness of the assault should be used in the cases of the other defendants. In this regard, he was not satisfied that Sandell shared his state of mind with the other defendants. He accepted it was possible that communications between Sandell and Mazomenos did not extend to the expected outcome.35 Further, the blows might have been inflicted by Pinnington and Nicholls. There was no evidence that Sandell communicated with either of those defendants before the assault commenced.36 94 Sandell submitted that the ‘paucity’ of evidence to support a finding that he had any discussion with the others about the nature of the assault to be perpetrated on Mr Codea, together with the fact that he did not inflict any blows himself, meant that there was no basis for a factual finding that he was part of a joint enterprise to cause serious harm. 95 This submission relied on two strands of evidence only. It did not engage with the balance of the evidence. The judge also found:37 In the case with respect to Mr Sandell, the evidence of Ms X and the CCTV footage establishes that he arrived in the car park with Mr Codea and immediately after the other three defendants arrived in the car park, he exited the Toyota at which point Mr Codea was immediately assaulted. That assault having taken place, Mr Sandell left with the men who had committed that assault. The movements of the three defendants other than Mr Sandell on West Terrace, and the timing of those movements viewed in the context of the movements of the Toyota, are only consistent with Mr Sandell communicating with one of the other three defendants while with Mr Codea. Based upon that evidence, I am satisfied beyond a reasonable doubt Mr Sandell joined a joint enterprise with the other three defendants to at least assault Mr Codea before arriving in the car park and that he participated by bringing Mr Codea to the car park and leaving the Toyota so that the assault could take place. The evidence which establishes Mr Sandell believed Mr Codea was responsible for the messages on Discord; told Ms Tassone that Mr Codea was to be assaulted and my satisfaction that he was angry about those messages simply confirms what is established beyond a reasonable doubt by evidence admissible in the case of all defendants. 96 We have set out earlier the passages in which the judge summarised the matters that supported, but were insufficient to a draw a conclusion beyond reasonable doubt, that the joint enterprise was to cause GBH.38 These were the features of the ‘co-ordinated, well planned attack from both sides which was designed to take Mr Codea by surprise and limit his opportunity to protect himself’.39 They included the direction, nature and force of the blows, in 34 [2023] SASC 85 at [256]. 35 [2023] SASC 85 at [258]. 36 [2023] SASC 85 at [259]. 37 [2023] SASC 85 at [278]. 38 [2023] SASC 85 at [299]-[300]. 39 [2023] SASC 85 at [299]. -- 27 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 24 circumstances where Mr Codea was particularly vulnerable, strapped into his seat belt. 97 These matters evidenced the scope of the joint enterprise. That the judge could not be satisfied that Sandell spoke to more than one member of the group about the expected outcome does not make the conclusion, that the scope of the enterprise was to cause serious harm, unreasonable. The judge found that this was Sandell’s intention. It was with that intention that he joined the joint enterprise. The others’ intentions were not evidenced by any communications with Sandell. However, that they held the common purpose of inflicting serious harm was evidenced by all the surrounding circumstances of the attack. 98 That being the case, it was clearly open to the judge to find that it was within the contemplation of all parties to the joint enterprise that they would cause serious harm to Mr Codea40 and that, by the doctrine of joint enterprise, Sandell was ‘responsible for each and every blow’. 99 We would refuse Sandell leave to appeal on Ground 3. Whether the judge erred in failing to have proper regard to the applicants’ disadvantaged backgrounds, in accordance with the principle in Bugmy v The Queen41 (Sandell Ground 1A, Mazomenos raised in submissions); 100 This ground was primarily the subject of submissions by Sandell. Mazomenos referred to Bugmy when relying on his personal circumstances in support of his complaints of manifest excess and disparity. Notwithstanding that we have rejected the complaint of disparity, we include Mazomenos as an applicant under this ground given that both his written and oral submissions invoked the principle. 101 In Bugmy v The Queen,42 the High Court explained that a deprived background may mitigate a sentence that would otherwise be appropriate. That case concerned the deprivation experienced by an Aboriginal offender. The Court was concerned to explain that such a background may mitigate the sentence in the same way that a deprived background of a non-Aboriginal offender may mitigate a sentence.43 The Court accepted that the effects of profound deprivation do not diminish over time and must be given full weight in determining the appropriate sentence in every case.44 102 Sandell referred the Court to authority where, even though the applicability of the Bugmy principle was recorded by a sentencing judge, the appeal court concluded that the deprivation of the applicant was not relevantly taken into 40 Gillard v The Queen (2003) 219 CLR 1 at [110]-[112] (Hayne J; Gleeson CJ, Gummow and Callinan JJ agreeing). 41 (2013) 249 CLR 571. 42 (2013) 249 CLR 571. 43 Bugmy v The Queen (2013) 249 CLR 571 at [37]. 44 Bugmy v The Queen (2013) 249 CLR 571 at [42]-[44]. -- 28 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 25 account in that they did not give it meaningful consideration or ‘full weight’.45 Cases of that kind may be illustrative of the principle; ultimately the question is answered by reference to the approach taken by the sentencing judge.46 103 Sandell was correct to observe that the judge did not refer to Bugmy by name at any point in sentencing. We have set out, earlier in these reasons, the full exposition of Sandell’s troubled background that the judge gave, commencing with the observation that Sandell’s background ‘excites sympathy’. When it came to determining the sentences, the judge said: Mr Sandell, you are a young man. It is to be hoped that you can break from the disadvantages of your childhood. 104 The judge gave Mazomenos’s background similarly comprehensive treatment and, again, commenced the formulation of sentence by noting: I must have regard to all of your personal circumstances, including your very unfortunate upbringing. 105 Sandell complained that the judge ‘did not bring that social deprivation to account in determining whether it modified his moral culpability for the offending’. He submitted in this regard that the judge was required to identify whether his background impacted on considerations of general and personal deterrence. 106 There can be no doubt that the judge had careful regard to Sandell’s and Mazomenos’s deprived and abusive backgrounds. He also referred to these when formulating the sentences. He did not, as Sandell submitted, make express reference to the impact of these backgrounds on the applicants’ moral culpability. A failure to do so was an influential, but not determinative, factor in Lloyd v The Queen,47 on which Sandell relied heavily. Nevertheless, we do not accept that Bugmy necessarily requires an express exposition of the impact of a deprived background on moral culpability in every case. Neither does it require reference to the authority by name. Whether the judge properly applied the Bugmy principle requires consideration of the circumstances of the case and the judge’s sentencing remarks. 107 One relevant circumstance is that neither Sandell nor Mazomenos made any submission in the terms now urged on this Court. The judge nonetheless gave a comprehensive description of the deprived backgrounds of each in terms that warrant the conclusion that he brought those backgrounds to account in the sentencing process. 108 The failure of counsel at sentencing to refer to Bugmy does not, of course, absolve a sentencing judge from applying the principle where it is applicable. 45 Lloyd v The Queen [2022] NSWCCA 18 at [35]. 46 See, e.g., Sypher v The Queen [2020] NSWCCA 336 at [2] (Basten JA). 47 [2022] NSWCCA 18 at [36]. -- 29 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 26 However, the appropriate form of addressing the principle in a given case may well be influenced by the manner in which submissions are made. Thus, for example, in Lloyd v The Queen,48 the applicant had submitted that there was a causal connection between his deprived background and the offending. That submission was supported by the evidence and, the Court held, the issue was consequently raised as a discrete aspect of the sentencing task.49 109 Neither applicant raised a comparably discrete issue here. The sentencing remarks demonstrate that the judge brought to account the deprived backgrounds of Sandell and Mazomenos as he was required to do. The applicants have not demonstrated that, in the circumstances of this case, the judge’s treatment of their backgrounds was inadequate. 110 We would refuse Sandell leave to appeal on Ground 1A. Insofar as Mazomenos sought leave to appeal on any ground that invoked the Bugmy principle, we would refuse leave to appeal. The offer by Mazomenos to plead guilty to manslaughter, evidence of genuine remorse, and the judge’s assessment of Mazomenos’s prospects of rehabilitation (Mazomenos Ground 4) 111 Mazomenos complained that the judge erred in not accepting that his offer to plead guilty to manslaughter was a matter of mitigation and evidence of genuine remorse and erred in assessing Mazomenos’s prospects of rehabilitation. As noted earlier, the judge was not informed about the basis of that offer, other than the legal basis. The judge found that Mazomenos did not give up on the possibility of a complete acquittal and maintained through to sentence that he had gone to the car park to talk to Mr Codea, where things escalated. The judge rejected that explanation beyond reasonable doubt. It was against that background that the judge said: As a general proposition an offer to plead guilty to an automatic alternative offence which is not followed up by that plea is not a matter of great significance in mitigation. In your case it has no significance. 112 Mazomenos submitted that in saying that the offer to plead guilty had no significance in his case, the judge erred. 113 In R v Zefi, the Court of Criminal Appeal said that:50 … an offer to plead guilty, even if not acknowledged on arraignment in front of the jury, is a mitigating factor. However the weight, if any, to be given to the offer is clearly a matter for the sentencing judge and dependent on the particular facts of the case. When the offence of which a defendant is ultimately convicted is a common law or statutory alternative to the offence charged, and there is therefore no reason why the plea to the alternative cannot 48 [2022] NSWCCA 18. 49 Lloyd v The Queen [2022] NSWCCA 18 at [29]. 50 R v Zefi (2017) 129 SASR 161 at [45] (Kourakis CJ, Blue and Lovell JJ). -- 30 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 27 be made on arraignment, a mere offer not matched by such a plea necessarily loses much of its weight. That is the case with respect to a plea to manslaughter on a charge of murder. 114 Consistently with this, in R v Franklin,51 Sulan J, referring to R v Hansen,52 observed that there was no rule of practice requiring a sentencing judge to give credit for an offer to plead guilty to a lesser offence than charged, as each case was required to be considered according to its circumstances.53 In the same case, White J, with whom Nicholson J agreed, noted that the entry on arraignment of a formal plea to an alternative offence of which the defendant is ultimately convicted will carry more weight than something less, such as a sounding out or an invitation to treat, as will other kinds of formal and open offers.54 115 The appellant’s post-offer conduct in that case was also significant. The issue at trial was the appellant’s assertion, in the context of charges of supplying cannabis to a child, was that he believed the child to be an adult. A plea of guilty would have involved an acknowledgment that this belief was not reasonable. However, the appellant maintained, in sworn evidence and after conviction when assessed by a psychologist, that he held that belief. As White J said:55 Post-offer conduct of this kind limits markedly the value of any pre-trial offer. 116 In the present case, the judge’s general proposition about the significance of an offer to plead to an alternative offence that is not followed up by a plea on arraignment was correct. In the application of the principle to the offer by Mazomenos, having regard to Mazomenos’s post-offer conduct in maintaining, all the way through to sentencing, an account inconsistent with the judge’s finding about the intention of the joint enterprise, it was clearly open to the judge to find that the offer had no significance. 117 As the judge found, Mazomenos did not give up on the possibility of a complete acquittal. In those circumstances, it was also open to the judge not to treat the offer as indicative of remorse. 118 Mazomenos further pointed to the opinion of Mr Balfour that the seriousness of his legal circumstances had had a ‘major salutary effect’ on him, that he was remorseful and that he had exhibited victim empathy. The judge accepted that Mazomenos held some genuine remorse, as well as concern for his own situation. 119 As to rehabilitation, Mazomenos pointed to Mr Balfour’s opinion that his prognosis to cease offending was ‘fair to good’. The judge expressed reservations about Mazomenos’s prospects of rehabilitation, given that Mazomenos had 51 (2012) 114 SASR 206. 52 (2011) 206 A Crim R 54. 53 R v Franklin (2012) 114 SASR 206 at [23] (Sulan J). 54 R v Franklin (2012) 114 SASR 206 at [45] (White J). 55 R v Franklin (2012) 114 SASR 206 at [49] (White J). -- 31 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 28 committed offences in the past and was a gang member, and apparently a willing one, at the time of the offence. It was open to the judge to hold those reservations. 120 Mazomenos has not demonstrated any error under this composite ground. The impugned conclusions of the judge were clearly open to him. We would refuse Mazomenos leave to appeal on Ground 4. Whether the judge erred in his treatment of whether Pinnington was associated with the Finks motorcycle club (Pinnington Ground 3) 121 Pinnington’s proposed Ground 3 reads: 3. The Learned Sentencing Judge erred in his treatment of the evidence with respect to the applicant being associated with the Finks, in that: 3.1 His Honour found, “the three [Mazomenos, Nicholls and Pinnington] were motivated to act, as [they] believed that the Finks, and a member of the Finks, had been disparaged”; 3.2 That the applicant’s association with the Finks, if it were capable of being determined, was relevant to his rehabilitation. 122 The judge’s full remarks on these three defendants’ associations with the Finks were as follows: I am satisfied beyond a reasonable doubt that the three of you knew each other through a gang, the Finks. Mr Mazomenos, you were a member. Mr Pinnington, you accepted, in a letter written to people close to you, and in submissions on sentence, that you were engaged in gang association. Mr Pinnington, given your conduct on the night with Mr Mazomenos, and as you were living with Mr Nicholls, I am satisfied beyond a reasonable doubt that the gang with which you were associating was the Finks. Mr Nicholls, you admit that there was a prospect of you joining that gang in the future. Earlier on the day of the attack upon Mr Codea, one of the disparaging messages on Discord contained the words ‘All Finks are fucked’, and a person was referred to as a ‘Finks dog’. I am satisfied beyond a reasonable doubt that the person being referred to as a dog was you, Mr Mazomenos. Mr Mazomenos, Mr Pinnington, and Mr Nicholls, I am satisfied beyond a reasonable doubt that the three of you were motivated to act, as you believed that the Finks, and a member of the Finks, had been disparaged. That is not to find that the attack was one sanctioned by that gang, or what might be termed as ‘club business’. I have not made that finding. None of you are to be sentenced for any connection to the Finks. You are only to be sentenced for the offence you committed. That said, in different ways, the three of you were associated with a gang, and that is relevant to your prospects of rehabilitation. (Emphasis added) 123 Pinnington submitted that the messages on Discord did not feature any connection with him. He lived with Nicholls, who had a prospect of joining the Finks. However, there was no evidence that Pinnington also had such a prospect. -- 32 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 29 Otherwise, the letter he wrote to his family tendered on his behalf during sentencing submissions included the following passage: Ive wasted a large chunk of my life to self sabotage. Abusing substances, Gang association, Fighting in the middle of the night Seizing almost every Bad opportunity available to me. I see now how stupid I was. (Emphasis added) 124 In the course of sentencing submissions, the judge asked Pinnington’s counsel about the reference to ‘gang association’. Counsel said that to the extent that Pinnington was associated with a gang, it was nothing more than that he knew people who had an association with it and might have gone there for a drink or something, but that was all. After some clarifying questions, the following exchange occurred: HIS HONOUR: Was it a different gang than the Finks that he is referring to in the letter? COUNSEL: Not in my understanding. HIS HONOUR: So his gang association wasn’t [sic – was] with the Finks but he didn’t know Mr Mazomenos, that’s just a coincidence? COUNSEL: I believe so. HIS HONOUR: I find that difficult to believe, Mr Algie. I put you on notice about that. 125 This exchange left Pinnington on notice that the judge did not accept his submission that his only association with the Finks was through knowing people, and specifically Nicholls, by reason of the fact that those two men lived together. As the respondent observed, Finks supporter material was openly on display in the common areas of Nicholls’s and Pinnington’s house. On the evening of the attack, Pinnington travelled to the city with Nicholls and met Mazomenos, a Finks member. The judge found that Pinnington joined the joint enterprise to attack Mr Codea shortly after meeting Mazomenos that evening. The attack occurred 90 minutes later. This was all in circumstances where Pinnington later admitted his ‘gang association’ to his family. 126 The judge indicated he did not believe that Pinnington did not know Mazomenos. He set out, in the passage quoted above, the factual foundation for inferring that Pinnington had a greater association than he admitted. Pinnington was given notice of the need to give evidence supporting the limits of his association with the Finks. 127 It was open to the judge to conclude that Pinnington had a greater association with the Finks than he admitted. The judge found that this association, different from those of Mazomenos and Nicholls, was nonetheless relevant to his prospects of rehabilitation, in circumstances where the attack was partly motivated by the disparagement of the gang. That finding was manifestly open. -- 33 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 30 128 We would refuse Pinnington leave to appeal on Ground 3. The errors with respect to the drug trafficking offences (Sandell Grounds 1B and 1C) 129 The issues raised by these grounds concern the appropriate course for this Court to take with respect to the trafficking offending, given that it is accepted that two errors occurred in addressing those charges. Those errors are best described in the context of explaining the circumstances of the offences to which Sandell pleaded guilty. 130 On 29 August 2020, in the course of investigating Mr Codea’s death, police attended at the Avani Apartments where Sandell was staying. During the search of Sandell’s room, police located various drugs and associated paraphernalia. These included tubs and bags of what police suspected to be methylamphetamine and a container of tablets. Police also located a tick list. They seized Sandell’s mobile phone and found text messages that were indicative of drug trafficking. 131 Forensic analysis of the various substances found in the room indicated methylamphetamine, clonazolam and clonazepam. 132 On 28 January 2022, the Director filed an information for arraignment in the District Court, charging Sandell with two counts of trafficking in a controlled drug. It particularised the drugs methylamphetamine and clonazepam. This replaced earlier informations that had particularised methylamphetamine and alprazolam. As identified earlier, clonazepam is not a controlled substance. Its particularisation in the information for arraignment was in error and the charge of trafficking in clonazepam disclosed no offence. 133 The accompanying Prosecution Case Statement included a table of the relevant substances. It indicated that a total of 3.19 grams of methylamphetamine was located. However, 1.10 grams of that methylamphetamine had been located in someone else’s car. The amount located in Sandell’s room was 2.09 grams. 134 Following the murder trial but before delivery of the verdict, Sandell indicated he would plead guilty to both trafficking charges and that he would not dispute any of the facts. On 7 December 2022, he was arraigned and pleaded guilty to those charges. Submissions on sentence were adjourned. Counsel for Sandell indicated that he would not submit that the conduct fell outside of the range indicated in R v Young.56 135 During sentencing submissions, a Prosecution Summary of Proposed Factual Basis for Sentencing was before the Court. This repeated the erroneous table. 136 The Court received a psychological report of Dr Loraine Lim. Sandell acknowledged to Dr Lim that he had previously sold drugs to Mr Codea and, at the 56 (2016) 126 SASR 41. -- 34 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 31 time, was dealing in a range of drugs. These included non-prescribed benzodiazepines, such as clonazepam and Xanax (alprazolam), psychostimulants, methamphetamines and GHB. He had, for several years, been supplementing his labouring income with drug dealing. He told Dr Lim: I was just doing whatever I wanted. I was dealing in drugs. Sometimes I would go on (drug) benders and wouldn’t sleep. I played the pokies every day. I was living out of Airbnbs and hotels because I was selling drugs and I wanted to fly under the radar of police … It wasn’t so much a violent lifestyle, but it was a party lifestyle that occasionally involved violence. I was going shopping with the money that I got from drug trafficking, going to music festivals, and partying at nightclubs at least a few times a week. It was fun, but it also wasn’t fun. It was hectic. 137 The judge considered that Sandell was not a candidate for leniency in respect of the trafficking offences. He was guarded about Sandell’s prospects of rehabilitation in regard to drug offending. He noted the background of trafficking and that these were not Sandell’s first convictions for trafficking offences. He noted that the amounts of both drugs were small but observed that this was ‘just happenstance given the background of trafficking’. 138 The judge identified two notional starting points of four years and six months. He made those sentences fully concurrent. He reduced that period by five per cent for the pleas of guilty and imposed a single sentence of four years, three months and 10 days. 139 The respondent accepted that the conviction on Count 2, which particularised clonazepam, should be set aside, notwithstanding the guilty plea and the accepted factual basis that revealed that Sandell could have been charged with an offence particularising a different drug. He was not so charged. 140 That leaves the conviction on Count 1, trafficking in methylamphetamine, in circumstances where the respondent accepted that the amount of the drug was 2.09 grams, rather than the 3.19 grams that the prosecution had erroneously particularised. 141 The issue raised by Ground 1C is whether the incorrect factual premise of the plea to the offence of trafficking methylamphetamine should cause this Court to set aside the sentence and resentence Sandell in respect of that count. The respondent submitted that on an independent review of the circumstances, this Court should conclude that no different sentence should be imposed and should dismiss Ground 1C. 142 Sandell emphasised that the sentence imposed for the methylamphetamine trafficking offence assumed 52 per cent more drug than had actually been found. The other way of looking at it is that both the correct and incorrect amounts were small trafficable amounts. The prescribed trafficable quantity of methylamphetamine is 2 grams. In any event, Sandell did not dispute that he was trafficking the drug. Further, it is to be recalled, he did not dispute at sentencing -- 35 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 32 that the standard in R v Young57 applied, albeit that was presumably on the basis of the assumed extra 1.10 grams. 143 The smaller amount does not mean that the standard in R v Young could not be said to apply:58 Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit. 144 Sandell had a prior conviction for trafficking in controlled drugs and had received the benefit of a suspended sentence on that occasion. By his own admission, this was not isolated offending. Sandell characterised the trafficking to Dr Lim as his livelihood and business. It was profitable and allowed him to engage in what may be described, to a degree, as a hedonistic lifestyle. 145 The judge’s observation that the relatively small quantity of the drug was a matter of happenstance remains true. The notional starting point of four years and six months is at the lower end of the range in R v Young. Reviewing all the circumstances, we consider that no different sentence should be imposed, notwithstanding the lesser amount of the drug.59 146 We would grant leave to appeal on ground 1C but would dismiss this ground. 147 Ground 1B concerns the course that this Court should take on account of the necessity of quashing the conviction on Count 2, which particularised clonazepam. 148 Section 160(1) of the Criminal Procedure Act 1921 (SA) (‘CPA’) provides: (1) If it appears to the Court of Appeal that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such other sentence in substitution or as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted. 149 This power is found in the common form appeal provisions. In Slattery v R (No 2),60 Bell CJ considered the equivalent provision in s 7(1) of the Criminal Appeal Act 1912 (NSW), having regard to High Court’s treatment of the former equivalent provision in Victoria, s 569(1) of the Crimes Act 1958 (Vic), in McL v The Queen.61 On reviewing that and other authorities, his Honour concluded:62 … there are two stages to the enquiry required by s 7(1). First, the Court is to determine whether to affirm the sentence imposed by the sentencing judge, or whether to proceed to 57 (2016) 126 SASR 41. 58 R v Young (2016) 126 SASR 41 at [66]. 59 Kentwell v The Queen (2014) 252 CLR 601 at [35]. 60 [2023] NSWCCA 171. 61 (2000) 203 CLR 452. 62 Slattery v R (No 2) [2023] NSWCCA 171 at [16]-[17]. -- 36 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 33 re-sentence the applicant. This discretionary decision will involve consideration of the degree of connection between the quashed count and those which remain; the way in which the sentencing judge gave effect to the principle of totality; and the adequacy of the remaining sentences. However, if the Court determines to resentence the offender, it is to do so by re-exercising the sentencing discretion afresh. In doing so, the Court is to pass the sentence which it independently considers to be appropriate in all the circumstances, and not defer to the sentence imposed at first instance. In this respect, s 7(1) differs from the approach taken under s 6(3) of the Criminal Appeal Act on an appeal against sentence. Under s 6(3), if error in the sentencing process is established, the Court does not first consider the adequacy of the sentence passed at first instance, but simply proceeds to re-exercise the sentencing discretion to determine whether a more or less severe sentence is warranted. This difference in approach is borne out by differences in the terms and structure of the two sections: notably, unlike s 7(1), s 6(3) confers no separate power to “affirm” a sentence. 150 Similarly, if the Court determines to resentence under s 160(1) of the CPA, its task is to resentence afresh. The Court is not constrained by s 158(8) of that Act not to increase the severity of a sentence as it is on a defendant’s appeal against sentence under s 157. 151 The respondent submitted that this was an appropriate case to affirm the sentence pursuant to the facility provided by s 160(1). In this regard, counsel referred to the observations by the plurality in McL v The Queen63 as to when it may be appropriate to exercise the power to resentence, rather than to affirm:64 It was argued, that, as a matter of the proper exercise of discretion, the occasion to exercise the power given by s 569(1) would ordinarily arise only when there is some connection between the convictions which are left standing and the alleged offences in respect of which convictions have been quashed such as to warrant a conclusion that the quashing of some convictions requires an alteration of the sentence imposed in respect of others. That is so. Of course, in the absence of some connection, it would not have been proper to join a number of counts in the one indictment or presentment in the first place. As the analysis of Brennan J in Ryan demonstrates, and as the facts of the present case illustrate, sufficient connection to justify an exercise of the power under s 569(1) may be found in the principle of totality. Much may depend upon the manner in which the sentencing judge has applied that principle. If the judge has followed the course recommended in the cases of Mill and Lomax, and responded to considerations of totality, not by reducing individual sentences, but by fixing individually appropriate sentences and making them wholly or partly concurrent, then no occasion to invoke s 569(1) may arise. On the other hand, if, as in the present case, a sentencing judge has given effect to considerations of totality partly by imposing individual sentences which were less than they would otherwise have been, then that is the very kind of case which may call for an exercise of the power to re- sentence under s 569(1). (Emphasis added) 152 In the present case, the judge did respond to considerations of totality by identifying notional starting points that were the same for each offence, given their (apparent) equivalent seriousness, reducing them by the same percentage for the 63 (2000) 203 CLR 452. 64 McL v The Queen (2000) 203 CLR 452 at [34]. -- 37 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 34 guilty pleas and making the sentences wholly concurrent. The judge sentenced Sandell for the trafficking offences (and prior to making the resulting sentence partially concurrent with the sentence for manslaughter) to four years, three months and 10 days, reduced from four years and six months. 153 The quashed count and the remaining count were closely connected, in that both occurred against Sandell’s background of a history of drug trafficking. The final result was the product of applying the principle of totality in a way that clearly recognised this. Having regard to the factors considered under Ground 1C, above, it is difficult to see that even with only one trafficking offence remaining, the starting point of four years and six months was not an appropriate sentence for that offending. 154 This is not a case where only partial concurrency was applied or where the two putative offences were part of a single, indivisible transaction that would warrant reconsideration when one element of that transaction is withdrawn. Having regard to the observations of the High Court in McL v The Queen65 and Bell CJ in Slattery v R (No 2),66 the present circumstances present as an archetype of the situation contemplated by s 160(1) where it is appropriate to affirm the sentence. 155 We would grant leave to appeal on Ground 1B but would dismiss the appeal on this Ground. We would affirm the sentence of four years, three months and 10 days imposed for trafficking in methylamphetamine. Whether the judge failed to adequately bring to account Sandell’s trafficking offending as part of the same course of conduct as the manslaughter offence (Sandell Ground 4) 156 The judge made the sentence for the trafficking offence partially concurrent with that for the manslaughter offence: The manslaughter offence was linked to your trafficking and committed at the same time. To recognise the link and the common timing I will make one year, six months and 10 days of the trafficking offence concurrent with the manslaughter sentence. 157 Sandell’s essential submission was to the effect that the interrelated nature of the offences was such that the judge should have allowed greater concurrency. In this regard he referred to not only the matters the judge drew on, but also, having regard to Dr Lim’s report, the significance of his deprived background that saw him introduced to illicit drugs at an early age. The criminogenic factors that sat behind both offences derived from the same upbringing and, within that, matters beyond his control. In this regard, Sandell observed that the considerations informing concurrency are closely related to those underpinning that of totality:67 65 (2000) 203 CLR 452. 66 [2023] NSWCCA 171. 67 R v Copeland (No 2) (2010) 108 SASR 398 at [107] (Kourakis J). -- 38 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 35 The considerations which govern the question of concurrency, together with a consideration of the offender’s prospects for rehabilitation, are, I think, the same matters which inform the reductions which are sometimes made for totality. Where, for example, a sentencing judge commences with a notional sentence which is calculated by simply multiplying the sentence which would have been imposed on one of a series of offences, by the number of offences committed in that series, there will almost always need to be a substantial reduction for totality. However, if the notional head sentence is arrived at after making proper allowance for the appropriate degree of concurrency, the artificiality commented on by Bleby J in R v Nylander68 will seldom arise. In such a case the notional sentence may only need to be adjusted, if at all, to allow some scope for rehabilitation in the circumstances of the particular offender.69 (Footnotes in original) 158 It was open for the judge to apply some degree of concurrency on account of the related nature of the offending, although the connection here might not be thought to be all that strong. Sandell’s submissions did not identify any factor that supported his proposition that it was an error not to have accorded greater concurrency. They tended to devolve to nothing more than an aspect of the complaint of manifest excess, which we consider below. 159 We would refuse Sandell leave to appeal on Ground 4. Whether the judge erred in imposing a sentence on Sandell that accumulated the sentences for manslaughter and trafficking in the absence of an order that the sentences be served cumulatively (Sandell Ground 4A) 160 Section 45(1) of the Sentencing Act provides: (1) Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative on any other sentence, or sentences, of imprisonment or detention in a training centre then being served, or to be served, by the defendant. 161 Sandell referred to authority to the effect that where a court does not specify sentences to be cumulative, they are to be treated as concurrent.70 He submitted that the judge failed to make an order pursuant to s 45(1) of the Sentencing Act that the sentence for the drug offending be made cumulative upon the sentence for manslaughter. 162 The judge’s order was perfectly clear. It was a necessary aspect of making the sentences partially concurrent that the balance of the sentence for trafficking be cumulative on the sentence for manslaughter. Section 45(1) was satisfied. This ground is entirely without merit. 163 We would refuse Sandell leave to appeal on Ground 4A. 68 R v Nylander (2003) 228 LSJS 24 at [81]-[85]. 69 See R v Cramp (2010) 106 SASR 304 at [51]-[52]. 70 Hawkett v Demichelis (1975) 12 SASR 274; R v Longford [1970] 3 NSWR 276 at 278. -- 39 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 36 Whether the judge erred in failing to have proper or any regard to the principle of totality (Sandell Ground 5). 164 Having made the manslaughter and trafficking offences partially concurrent in the terms set out above, the judge then said: This results in a total head sentence of 15 years, one month and seven days. Having reflected on that outcome, I do not regard any reduction as appropriate. 165 Sandell submitted that a consideration of all matters relevant to sentence, including the objective seriousness of the offending and the matters personal to him, meant that the final sentence was disproportionate to the offending conduct as a whole and warranted a reduction pursuant to the principle of totality. The submission went so far as to say that this was ‘for the same reasons advanced under ground 6’, that being the complaint of a manifestly excessive non-parole period. 166 The ground of appeal, however, is that the judge failed to ‘have proper or any regard’ to the principle of totality. Sandell did not develop that complaint in submissions, other than to say that the principle of totality provided a mechanism by which the judge could have had ‘one last look’ at the sentence. However, the judge’s language of ‘having reflected on that outcome’ clearly showed that he did have ‘one last look’. 167 This ground, cast as a separate complaint of process error, is wholly without merit. It is a superfluous addition to the complaint of manifest excess. We would refuse Sandell permission to appeal on Ground 5. Whether the sentences were manifestly excessive (Sandell Grounds 1.2 and 6, Mazomenos Ground 1 and Pinnington Ground 1) 168 A complaint of manifest excess requires application of the principles the subject of exposition by this Court in Hackett v The Queen:71 The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case.72 The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence.73 Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed.74 A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice.75 It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with 71 [2021] SASCA 32 at [8] (Kelly P, Lovell and Livesey JJ). 72 Elias v The Queen (2013) 248 CLR 483. 73 Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 74 House v The King (1936) 55 CLR 499. 75 Barbaro v The Queen (2014) 253 CLR 58 at [61] (Gageler J). -- 40 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 37 the statutory regime that applies.76 To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.77 (Footnotes in original) 169 Each applicant having raised this ground, it is for each to establish that it was not reasonably open for the sentencing judge to have imposed the sentence that he did. In Thrupp v The King,78 this Court examined the ‘almost unique’ and protean character of manslaughter.79 It noted the observations of Spigelman CJ in R v Forbes:80 As has frequently been stated, manslaughter is almost unique in its protean character as an offence. … In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder (R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]). It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter. 170 The maximum penalty is life imprisonment; the range of penalties can reflect conduct falling just short of murder to circumstances that require no more than a nominal penalty.81 171 Sentences imposed in comparable cases can assist in avoiding a sentence that is capricious or arbitrary. However, as this Court observed in Thrupp v The King,82 the range of factors contributing to the seriousness of the offence or amounting to mitigating circumstances is so wide that it is difficult in any given case to identify a genuine yardstick.83 172 We have set out earlier the circumstances of the offending and the applicants. We draw on those summaries in addressing the submissions of each applicant under their respective complaints of manifest excess. Common to all was that this was a particularly serious case of manslaughter. Each applicant was a participant in a joint enterprise to assault Mr Codea with the common purpose of causing him serious harm. It was an episode of planned group violence. It was undertaken as an act of retribution for disparagement of a motorcycle gang and publication of involvement in drug trading. 76 Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 77 R v Pham (2015) 256 CLR 550 at [56] (Bell and Gageler JJ). 78 [2022] SASCA 97. 79 Thrupp v The King [2022] SASCA 97 at [21]-[24]. 80 (2005) 160 A Crim R 1 at [133]-[134] (Spigelman CJ, McClellan CJ at CL agreeing). 81 The Queen v Lavender (2005) 222 CLR 67 at [22] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 82 [2022] SASCA 97. 83 Thrupp v The King [2022] SASCA 97 at [24], referring to R v Wheeler [2015] SASCFC 83 at [31]-[33] (Stanley J, Gray and Peek JJ agreeing). -- 41 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 38 Sandell: manslaughter (Ground 1.2) 173 Sandell provide a table of what he submitted were comparative sentences imposed for manslaughter that demonstrated the severity of the sentence imposed on him. We have had regard to that table. There are comparative features and differentiating features in the cases featured. It is not necessary to recount the circumstances of each case identified for comparative purposes.84 174 Sandell relied on the following factors as demonstrating, together, that the starting point of 13 years was manifestly excessive: • Sandell was 23 at the time of the offence and 26 at sentencing. His youthful immaturity went some way to explain the offending and provided greater scope for the imposition of a sentence which redeems and rehabilitates the applicant.85 Incarceration is more likely to impede that rehabilitation; • Sandell’s culpability related to his involvement in an agreement to assault in which he did not physically participate; • Sandell had a limited criminal history, with no history of violent offending; • Sandell was contrite and remorseful, evidenced by his guilty plea and letter of apology; • Sandell had a deprived and unstable upbringing, as described earlier; • Dr Lim considered Sandell was not an inherently violent and dangerous person. His prospects for rehabilitation remained positive, as long as he remained committed to his psychological rehabilitation and to leading a pro-social lifestyle. Sandell described the offending and the outcome as a reality check and wake-up call. Dr Lim considered Sandell to be motivated to engage with professional supports. His motivation to address his childhood trauma enhanced his prospects of rehabilitation. 175 The judge took these matters into account. Sandell was relatively young. He had been shown leniency in relation to his drug offending, with the imposition of a suspended sentence on entering into a bond. Notwithstanding this, he continued to trade in drugs. He was aware that the other defendants were going to be involved in the offending because of Mr Codea’s disparagement of the Finks and Mazomenos. That is, he was willing to be involved in violence related to gang activity. That violence was also directly related to his drug-trafficking enterprise. 176 There were, therefore, considerations pulling in different directions. That is in circumstances where this was a serious example of manslaughter, pursuant to a joint enterprise. Sandell was an organiser of the enterprise and was, despite not 84 Thrupp v The Queen [2022] SASCA 97 at [29]. 85 Referring to R v Williams [2018] SASCFC 14 at [41]-[45]; Vartzokas v Zanker (1989) 51 SASR 27. -- 42 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 39 physically inflicting any blow, ‘responsible for each and every blow’. He intended serious harm. Mr Codea died. 177 Sandell has not established that the sentence of 13 years for manslaughter, reduced by five per cent for his plea of guilty, was not reasonably open to the judge. We would refuse Sandell leave to appeal on Ground 1. Sandell: trafficking non-parole period (Ground 6) 178 Sandell acknowledged that the judge was required to fix a non-parole period of at least four-fifths of the sentence for manslaughter, as this was a serious offence against the person within the meaning of s 47(5)(d) of the Sentencing Act. The notional head sentence for the trafficking offences (now singular trafficking offence) was four years, three months and 10 days. The effect of the order for partial concurrency was that in addition to the 12 years, four months and seven days for manslaughter, a further 33 months were attributable to the trafficking offence. 179 Sandell then submitted that assuming that a non-parole period of no more than four-fifths of the head sentence was imposed for manslaughter, the remaining portion of the non-parole period that was attributable to the trafficking offence was one year, seven months and 13 days, or 59 per cent of the notional head sentence. Sandell submitted that for the same reasons advanced under Ground 1, this was manifestly excessive. 180 The total head sentence was 15 years, one month and seven days. The total non-parole period was 11 years and six months. The judge could only impose a single non-parole period. While Sandell’s presumptive calculations may assist in explaining that final, single non-parole period, ultimately the question must be whether that single non-parole period was manifestly excessive. In this case, that question required bearing firmly in mind the four-fifths requirement in respect of the manslaughter offence. 181 If anything, the proportion of the non-parole period presumptively attributed to the trafficking offending was, at 59 per cent, a low to moderate proportion. The matters relied on by Sandell do not, on any view, provide any basis for thinking that this was not reasonably open to the judge. The actual non-parole period imposed was inflated by the necessary four-fifths imposition in respect of manslaughter to approximately 76 per cent of the final head sentence. 182 In our view, this complaint is not reasonably arguable. We would refuse Sandell permission to appeal on Ground 6. Mazomenos (Ground 1) 183 The observations we have made generally with respect to the offence of manslaughter are equally applicable to a consideration of Mazomenos’s sentence. Mazomenos was sentenced on the basis that he too was a ‘prime mover’ in the enterprise. The joint enterprise to assault Mr Codea and cause him serious harm -- 43 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 40 was in response in part, to Mr Codea’s disparagement of the Finks and of Mazomenos as a ‘Finks dog’. 184 Mazomenos referred to the judge being unable to be satisfied whether it was he or Nicholls who had struck Mr Codea from one side of the car. Again, however, the judge correctly found that Mazomenos was responsible for each and every blow. 185 Mazomenos relied, in addition, on: • his relative youth, being 24 at the time of offending; • Mr Balfour’s opinion that with the assistance of a structured rehabilitation program, Mazomenos’s prognosis was fair to good. In this regard, he was critical of the judge’s statement of reservation about his prognosis. The judge in this regard referred to Mazomenos’s past offending and his membership of the Finks; • his deprived upbringing. We have summarised this above. Mazomenos relied heavily in this regard on Bugmy v The Queen.86 We have rejected any contention by Mazomenos that the judge did not give proper attention to the principle in that case. However, the principle nonetheless requires full application in the present context. 186 It was open to the judge to retain reservations about Mazomenos’s prospects of rehabilitation. As to the effect of his upbringing, we are not persuaded that this, alone or in combination with the other matters relied on, warrants a conclusion that the head sentence of 13 years was not reasonably open. 187 The history related above shows that Mazomenos did indeed have a dysfunctional and traumatic childhood. It is appropriate to have full regard to the potential mitigatory effect of his background on his moral culpability. That, of course, is not the only relevance of his background. In Bugmy v The Queen,87 the Court said:88 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult89. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, 86 (2013) 249 CLR 571. 87 (2013) 249 CLR 571. 88 Bugmy v The Queen (2013) 249 CLR 571 at [44]. 89 Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ. -- 44 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 41 the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. (Footnote in original) 188 It was appropriate to take into account Mazomenos’s background, as the judge did. Having regard to all the circumstances of his offending, however, we are not persuaded that his background, together with the balance of his personal circumstances, makes it reasonably arguable that the head sentence of 13 years unreasonable or unjust. 189 We would refuse Mazomenos permission to appeal on Ground 1. Pinnington (Ground 1) 190 Pinnington relied on the following in support of his complaint that his head sentence of 11 years was manifestly excessive: • his physical participation notwithstanding, he was not a prime mover in the enterprise; • his relative youth, being 23 at the time of the offending and 26 at sentencing; • his criminal history was limited; and • the judge had some optimism with respect to his prospects of rehabilitation. 191 Pinnington simply submitted that these factors were indicative of a final sentence that sat outside of the permissible range of sentences for offences of this type. He did not develop the submission. 192 While Pinnington was not a prime mover, he was a willing participant in a group assault on Mr Codea, the common purpose of which was to cause serious harm. The violence was planned and responsive to slights on the Finks motorcycle club and Sandell’s drug trafficking activities. Pinnington had a significant role in executing the violence. 193 Having regard to all the circumstances of the offence and Pinnington’s personal circumstances, it cannot be said that the sentence of 11 years, two years less than those of the ‘prime movers’ was not reasonably open to the judge. 194 We would refuse Pinnington leave to appeal on Ground 1. Conclusion 195 We refuse Mazomenos and Pinnington leave to appeal. We set aside Sandell’s conviction for trafficking in a controlled drug (clonazepam) the subject of Count 2 of the Information filed 8 December 2021. We grant Sandell leave to appeal on Grounds 1B and 1C of his Second Amended Appeal Grounds dated -- 45 of 46 -- [2025] SASCA 41 Bleby JA and Stein AJA 42 28 October 2024. We refuse Sandell leave to appeal on the balance of the grounds. We dismiss each of the appeals against sentence. -- 46 of 46 --