DAVID ALAN NORMAN v THE KING [2025] SASCA 123

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DAVISON) DCCRM-22-944 Appellant: DAVID ALAN NORMAN Counsel: MR P CHARMAN - Solicitor: SARAH GRIMWADE BARRISTER & SOLICITOR Respondent: THE KING Counsel: MS L LAKATOS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/10/2025 File No/s: SCCRM-25-033027 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. NORMAN v THE KING [2025] SASCA 123 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice David) 23 October 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE Appeal against sentence. The appellant pleaded guilty to two counts of damaging property contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Counts 4 and 6), one count of theft contrary to s 134(1) of the CLCA (Count 7), one count of attempted theft contrary to ss 134(1) and 270A(1) of the CLCA (Count 8), and one count of assault contrary to s 20(3) of the CLCA (Count 9). The offending all occurred on 5 October 2021 in the vicinity of the Marion Westfield Shopping Centre. The appellant was sentenced to a total period of imprisonment of three years, five months and 15 days with a non-parole period of one year, 11 months and 22 days. The appellant raised one complaint on appeal, that the sentence imposed was manifestly excessive. He particularised the ground with complaints about aspects of the sentencing judge’s approach, including that the starting point for each offence was manifestly excessive and that the offending was part of a course of conduct such that the judge erred in failing to make to the individual sentences substantially concurrent. He relied on these particulars as reasons for why the total sentence was manifestly excessive. Held (by the Court) granting permission to appeal, allowing the appeal, setting aside the sentence and resentencing the appellant: 1. The total head sentence of three years, nine months and 22 days, before deductions, was manifestly excessive. -- 1 of 12 -- 2. A degree of partial concurrency is appropriate in resentencing the appellant in respect of each of the offences which, although separate and distinct, were committed as part of one course of conduct. 3. The appellant is resentenced to a period of imprisonment with a head sentence of two years and 23 days, with a non-parole period of one year, four months and 23 days. Criminal Law Consolidation Act 1935 (SA) ss 85(2), 134, 270A, 20(3); Sentencing Act 2017 (SA) s 26, referred to. House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Hackett v The Queen [2021] SASCA 32; Barbaro v The Queen (2014) 253 CLR 58; R v Pham (2015) 256 CLR 550; Brougham v The King [2023] SASCA 75; Mackenzie v Betts (1980) 23 SASR 307; R v Dorning (1981) 27 SASR 481; White v The Queen (2022) 141 SASR 398; R v Copeland (No 2) (2010) 108 SASR 398; Trott-Dan v The King [2023] SASCA 2, considered. -- 2 of 12 -- NORMAN v THE KING [2025] SASCA 123 Court of Appeal – Criminal: Doyle, Bleby and David JJA 1 THE COURT: This is an application for permission to appeal against sentence. The appellant pleaded guilty to two counts of damaging property contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Counts 4 and 6), one count of theft contrary to s 134(1) of the CLCA (Count 7), one count of attempted theft contrary to ss 134(1) and 270A(1) of the CLCA (Count 8), and one count of assault contrary to s 20(3) of the CLCA (Count 9). The offending all occurred on 5 October 2021. 2 On 25 July 2025, a District Court judge sentenced the appellant to a total period of imprisonment of three years, five months and 15 days with a non-parole period of one year, 11 months and 22 days. The sentence was backdated to commence on 5 November 2024. The appellant has appealed against his sentence on the sole ground that the sentence was manifestly excessive. He has particularised that ground with complaints about aspects of the sentencing judge’s approach. Background 3 On 5 October 2021, Mr Corey Sard was working at Bunnings at the Westfield Marion Shopping Centre. His motorcycle was parked just outside the Bunnings store in the car park. At about 5:10 pm, a customer informed him that there was a motorcycle on the ground in the car park. Mr Sard went outside and saw that it was his motorcycle. CCTV footage showed that at about 4:17 pm, the appellant walked up to the motorcycle and kicked it once with his left foot, causing it to fall over. There was significant damage to the motorcycle, including to its indicator, clutch pedal, clutch lever and scratches to the foot pedals and mirrors, costing approximately $4,000 to repair. 4 The CCTV footage depicted the appellant’s back and pink mohawk. The appellant was wearing hi-vis and a black backpack. This conduct was charged as Count 4 on the information (damaging property). 5 At about 4:45 pm, Mr Lachlan Warner had parked his work utility, a Toyota HiLux, at the Woolworths pick up and collect at Marion. He was in the utility, and the engine was still running. The appellant opened the driver’s side door while Mr Warner was on the phone. The appellant appeared to be very intoxicated. The appellant said ‘Hey Chris’, to which Mr Warner replied ‘Mate, I’m not who you think I am. Don’t open my door, fuck off’. 6 The appellant told Mr Warner not to swear at him. He opened the door again and pulled it as far open as he could. Mr Warner tried to hold onto the door and was pulled out of the car. He told the appellant to ‘fuck off’. The appellant said, ‘I’ll fucking carjack you’. The appellant tried to push past Mr Warner to enter the -- 3 of 12 -- [2025] SASCA 123 The Court 2 driver’s area of the vehicle. Mr Warner tried to stop him. The appellant pushed past Mr Warner and swung his left elbow at Mr Warner’s head, which connected with his mouth area. This act was charged as Count 9 on the information (assault). 7 The appellant entered the driver’s side of the vehicle headfirst with his feet still on the ground. Mr Warner was worried that the appellant was going to drive away, as the car was still running. He pulled the appellant out of the car by his backpack, causing the appellant to fall to the ground. He got into the driver’s seat, locked the door and called the police. This conduct of the appellant was charged as Count 8 on the information (attempted theft). 8 The appellant hit the driver’s side window while yelling at Mr Warner. Mr Warner was on the phone and could not tell what the appellant was saying. The appellant kicked the driver’s side door several times, causing it to dent in several places. The cost to repair the damage was quoted to be approximately $1,400. This was charged as Count 6 on the information (damaging property). 9 Mr Warner told the appellant that he had called the police. The appellant kicked the driver’s side door again and then walked away. 10 At about 5:05 pm, the appellant entered the Liquorland store at Marion. He picked up a carton of Corona Extra beer, worth $57, that was located at the front of the store and left without paying. This was charged as Count 7 on the information (theft). 11 Between 4:00 pm and 5:00 pm on the same day, numerous police cars were tasked to incidents in and around Marion. Police located the appellant at about 5:15 pm with the carton of beer trying to board a bus at the interchange. Police removed the appellant from the bus. The carton of beer was returned to the store. 12 Police arrested and searched the appellant. The appellant was in a highly aggravated state. Police found a six-pack of premix spirits and two bottles of whiskey in his backpack. The appellant complained of feeling unwell and disclosed that he had a heart condition. He was taken to the Flinders Medical Centre for assessment. When he arrived at the hospital, he became extremely agitated, kicking the door of the police vehicle and yelling aggressively. A doctor assessed him at the hospital and deemed him fit for custody. Police conveyed the appellant to the Christies Beach cell complex. The appellant was unable to be interviewed due to his behaviour. 13 The appellant is 45 years old. He has a lengthy antecedent history incorporating numerous convictions for assault, property damage and dishonestly taking property. He has been sentenced to terms of imprisonment that have been suspended. He has breached bonds and been ordered to serve terms of imprisonment. In 2023, in Queensland, he was sentenced to a term of imprisonment for the offences of stealing, possessing dangerous drugs, unlawful possession of suspected stolen property and other minor offending. In 2024, in -- 4 of 12 -- [2025] SASCA 123 The Court 3 Adelaide, he was sentenced to a term of imprisonment of eight months from 5 March 2024 for the offences of damaging property and trespassing in a residence. 14 On 19 September 2023, whilst the appellant was on home detention bail, he cut off his ankle bracelet and absconded. He was later imprisoned in Queensland. He had spent one year and 10 months on home detention. He was apprehended on a warrant on 5 March 2024 and has been in custody since this time, which has included serving the eight-month sentence referred to above. Sentence 15 The judge sentenced the appellant as follows: • Count 4 (damaging property, motorcycle): the judge indicated a starting point of one year and four months. She reduced that by 10 per cent on account of the guilty plea, making one year, two months and 13 days; • Count 6 (damaging property, Toyota HiLux): the judge indicated a starting point of one year and six months. She reduced that by 10 per cent on account of the guilty plea, making one year, four months and seven days; • Count 7 (theft, carton of beer): the judge indicated a starting point of eight months. She reduced that by 10 per cent on account of the guilty plea, making seven months and seven days; • Count 8 (attempted theft, Toyota HiLux): the judge indicated a starting point of one year and six months. She reduced that by 35 per cent on account of the guilty plea, making 11 months and 22 days; • Count 9 (assault): the judge indicated a starting point of one year. She reduced that by 35 per cent on account of the guilty plea, making seven months and 25 days. 16 The judge ordered the sentences for Counts 6 and 8 to be served concurrently, and the balance of the sentences to be served cumulatively, resulting in a head sentence of three years, nine months and 22 days. She set a non-parole period of two years and four months. From these periods she deducted 38 days to take into account the period spent in custody between 5 October and 12 November 2021. She reduced the sentence by a further three months to take into account the time spent on home detention. 17 This resulted in a final head sentence of three years, five months and 15 days, with a non-parole period of one year, 11 months and 22 days. She declined to suspend the sentence or to order that it be served on home detention. -- 5 of 12 -- [2025] SASCA 123 The Court 4 The appeal 18 As indicated earlier, the complaint on appeal is that the sentence is manifestly excessive. The appellant particularised this complaint in the form of the following essential contentions: • the starting point identified for each count was manifestly excessive in each case; • in circumstances where the offending all occurred in less than an hour, the offending was a course of conduct and the judge erred in failing to make all the sentences substantially concurrent, rather than the sentences for only counts six and eight; • the offending relating to the HiLux comprised an incident of short duration. There was no reason to make the sentence for the assault cumulative on the sentence for the other two offences relating to the HiLux; and • the judge failed to apply the principle of totality, having regard to the fact that the sentence was imposed cumulatively on the eight-month sentence expiring on 4 November 2024. 19 While the appellant identified these particularised matters as ‘arguably flawed’ aspects of the sentencing process, he ultimately relied on them as ‘reasons’ why the sentence was manifestly excessive. Ultimately, manifest excess is a conclusion to the effect that a sentence is unreasonable or plainly unjust.1 The sentencing discretion does not yield a single correct sentence.2 However, as this Court observed in Hackett v The Queen:3 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.4 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 the statutory regime that applies.5 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.6 (Footnotes in original) 20 Given the number of offences for which the appellant was sentenced, it is convenient to address each of the asserted reasons in turn. At the outset, however, 1 House v The King (1936) 55 CLR 499. 2 Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 3 [2021] SASCA 32 at [8]. 4 Barbaro v The Queen (2014) 253 CLR 58 at [61] (Gageler J). 5 Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 6 R v Pham (2015) 256 CLR 550 at [56] (Bell and Gageler JJ). -- 6 of 12 -- [2025] SASCA 123 The Court 5 it is necessary to acknowledge their limited utility in an analysis of whether the final sentence was manifestly excessive:7 While notional starting points may provide some support for a submission that the sentence is manifestly excessive, the applicant must establish that the final sentence imposed for all of the offending is manifestly excessive. When looking at the overall sentence, this Court is not bound to follow the ‘notional sentences’ nor the sentencing Judge’s approach to concurrency when considering whether the single sentence is manifestly excessive. The starting points 21 The appellant submitted that each of the starting points, other than that indicated for the assault, was manifestly excessive. He did not point to any yardstick sentence for the offending. There is none, other than the maximum penalty prescribed in each case. 22 The attacks were random and unprovoked. They occurred in a public place. The HiLux offending would have been terrifying to Mr Warner. The appellant engaged in the offending against a background of an extensive criminal history of like behaviour. 23 The offending demonstrated a continued disregard for the law and suggested that the appellant had not derived any benefit from previous community-based orders or been deterred by previous sentences of imprisonment. His prospects of rehabilitation were extremely low. 24 The appellant demonstrated no remorse for the offending, other than by entry of the pleas of guilty. He entered the guilty pleas only days before the trial, which had been vacated previously, was due to commence. He had absconded to Queensland while on home detention and committed further offences while at large. 25 The appellant had a supportive father and grandfather and had recently commenced medication to assist him with abstaining from illicit substances. 26 In all of the circumstances, protection of the community and personal deterrence warranted significant sentences. Having said that, the individual starting points were very high for offending of this nature. Count 4, which attracted a starting point of one year and four months, comprised a single kick to a motorcycle, albeit that this resulted in significant damage. Count 7, which involved walking out of a shop with a carton of beer worth $57, attracted a starting point of eight months. These incidents were picked up on CCTV. They were not committed in the physical presence of any person. 27 Count 6, damaging property (the HiLux) attracted a starting point of one year and six months, notwithstanding the quoted cost of repairing the damage was only about $1,400. It occurred in a frightening circumstance, given that Mr Warner was 7 Brougham v The King [2023] SASCA 75 at [31]. -- 7 of 12 -- [2025] SASCA 123 The Court 6 in the vehicle. However, the appellant was charged separately with respect to the attempted theft and the assault. 28 The appellant used the term ‘manifestly excessive’ in respect of the individual starting points, other than that for the assault. However, as noted earlier, his complaint of law is directed only at the final outcome. At this stage, it is sufficient to observe that notwithstanding that there was little to be said by way of mitigation, and the appellant’s criminal record gave no reason for confidence in his prospects of rehabilitation, the sentences for the property damage offending and the theft of the beer were very high. Cumulative sentences 29 As observed earlier, the judge made the sentences cumulative, other than the two property offences involving the HiLux. The appellant’s complaint in this regard relies on the proposition that the offending was a course of offending over a short period of time. He referred to the ‘general principle’, articulated in Mackenzie v Betts8 and approved in R v Dorning:9 … that where offences arise out of the one course of criminal conduct or activity and are truly connected with each other, the sentences should be concurrent. 30 Mere closeness in time is relevant but not determinative. In Dorning, the fact that the appellant had committed four crimes over five days, all of a similar nature and with the same motive, being to raise money to go back to New Zealand, was insufficient to constitute them as a course of conduct or provide the necessary nexus of connection.10 31 In White v The Queen,11 this Court considered at length the development of the application of concurrency and partial concurrency since Mackenzie v Betts12 and R v Dorning,13 observing:14 The concepts of a single “course of conduct” or “one multi-faceted course of criminal conduct”, while simple in enunciation, have, on occasion, proved problematic in their application. 32 The Court referred with approval15 to the justifications for a wider principle of concurrency that Kourakis J articulated in R v Copeland (No 2).16 These are, in essence, that:17 8 (1980) 23 SASR 307 at 308. 9 (1981) 27 SASR 481 at 482. 10 R v Dorning (1981) 27 SASR 481 at 483. 11 (2022) 141 SASR 398. 12 (1980) 23 SASR 307. 13 (1981) 27 SASR 481. 14 White v The Queen (2022) 141 SASR 398 at [31]. 15 White v The Queen (2022) 141 SASR 398 at [46]. 16 (2010) 108 SASR 398. 17 R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[105]. -- 8 of 12 -- [2025] SASCA 123 The Court 7 • the deprivations of a sentence will be suffered more deeply if served after the completion of one or more earlier terms; • the length of imprisonment necessary to achieve specific and general deterrence in the case of a course of conduct will generally be less than the result of the multiplication of the sentence for a single offence by the number of offences committed; and • when the offences are committed within a short space of time, the offender may have had limited time and capacity to reflect before committing the further offences, which may mitigate their moral culpability. 33 Justice Kourakis concluded:18 There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent if any, to which the sentences imposed for them should be concurrent. I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single course, or a number of courses, of conduct. Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent. 34 The appellant’s offending occurred within a relatively short space of time. However, each incident or group of incidents was random and unconnected with the others. 35 The damaging of the motorbike was a gratuitous act that demonstrated complete disregard for another person’s property. 36 The incidents involving the HiLux occurred approximately 25 minutes later. As the respondent submitted, these incidents were of a completely different nature and scope. They comprised serious incidents of attempted theft and assault. Mr Warner attempted to defend himself and his property and the incident became protracted. 37 The theft of the carton of beer occurred approximately 20 minutes later. This was an unconnected theft from retail premises. 38 The only ‘connections’ between the three offending outbursts were the relatively short space of time between them and the fact they appear to have been induced to some extent by intoxication of some kind. It is true to say, as the respondent submitted, that the appellant had time to reflect between each set of offending. The victims were different in each case. 39 Having said that, it is still the case that the offending all occurred well within the space of an hour. The appellant was engaged in an intoxicated sojourn of random offending in a shopping centre precinct. While he committed the offences 18 R v Copeland (No 2) (2010) 108 SASR 398 at [106]. -- 9 of 12 -- [2025] SASCA 123 The Court 8 at separate times, there is force in the observation that the length of imprisonment necessary to achieve specific and general deterrence for this offending would be less than the sum of the sentences for each offence. 40 Again, the appellant did not submit that the failure to order any concurrency amounted to a separate process error. However, it will be necessary to consider the effect of this aspect of the sentencing, together with the starting points, in assessing the outcome. The HiLux offending 41 The appellant complained that the sentence for assault should have been ordered to be served concurrently with those for the property offences relating to the HiLux. 42 The assault is properly seen as part of the course of conduct that the appellant engaged in with respect to the HiLux and, in particular, the attempted theft. Nevertheless, as the respondent submitted, the assault had a different character from the property offending. It was an offence against the person. Mr Warner was traumatised. The appellant had prior convictions for offences against the person. 43 It is important to maintain the flexibility that should be afforded to sentencing judges when ensuring proportionality.19 It would have been open to the sentencing judge to impose some measure of concurrency as between the assault and the HiLux property offending. Again, the consequence of not doing so is ultimately a matter that contributes to the complaint of outcome error. Totality 44 The appellant complained that the judge imposed the final head sentence, cumulatively upon the sentence of eight-months’ imprisonment the appellant had served from 5 March 2024 until 5 November 2024, without consideration of the total period of imprisonment that the appellant would thereby be required to serve. The sentence was backdated to commence from 5 November 2024, the appellant having remained in custody following the expiry of that eight-month sentence. 45 The judge referred to the eight-month period of imprisonment. She did not mention the principle of totality. A failure to mention totality does not necessarily mean that the judge did not consider it, or amount to a process error.20 The judge likely did not see the need to refer to it, in circumstances where she made concurrent the sentences for the HiLux property offences. 46 The fact of the prior period of imprisonment of eight months was a relevant personal circumstance. The complaint that totality required some reduction of the sentence, in order to ensure that the sentence was not disproportionate, or that this 19 Trott-Dan v The King [2023] SASCA 2 at [54]. 20 White v The Queen (2022) 141 SASR 398 at [20]. -- 10 of 12 -- [2025] SASCA 123 The Court 9 period of imprisonment was otherwise not taken into account, folds into the question of whether the final sentence was manifestly excessive. Manifest excess 47 It is necessary to step back and consider the sentence as a whole, in light of all the circumstances of the offending and the appellant’s personal circumstances. The appellant did not suggest that the judge misapprehended his personal circumstances, recounted above. 48 Having regard to all of the matters addressed above, and in particular the appellant’s criminal history and manifest failure to be deterred from offending of this kind in the past, it was necessary to impose a significant sentence. Having said that, the combination of the very high sentences for the property offending and the failure to afford any concurrency (other than in respect of the HiLux offending) resulted in a sentence that went well beyond what was necessary to achieve the sentencing purposes for this outburst of offending that occurred in well under an hour. The sentence was, in all the circumstances, disproportionate. We accept the appellant’s submission that the head sentence of three years, nine months and 22 days, before deductions, was manifestly excessive. Resentence 49 We grant permission to appeal, allow the appeal, set aside the sentence and resentence the appellant. We indicate the following starting points and reductions on account of the guilty pleas: • Count 4 (damaging property, motorcycle): we would resentence the appellant to 10 months’ imprisonment. Reducing that by 10 per cent on account of the guilty plea results in nine months; • Count 6 (damaging property, HiLux): we would resentence the appellant to one year’s imprisonment. Reducing that by 10 per cent on account of the guilty plea results in ten months and 24 days; • Count 8 (attempted theft, HiLux): we would resentence the appellant to one year and six months’ imprisonment. Reducing that by 35 per cent on account of the guilty plea results in eleven months and 21 days; • Count 9 (assault): like the sentencing judge, we would resentence the appellant to one year’s imprisonment. Reducing that by 35 per cent on account of the guilty plea results in seven months and 24 days; • Count 7 (theft, carton of beer): we would resentence the appellant to three months’ imprisonment. Reducing that by 10 per cent on account of the guilty plea results in two months and 21 days. 50 The HiLux offending is the most serious. That all occurred within minutes, albeit that the appellant managed to commit several distinct offences. A degree of -- 11 of 12 -- [2025] SASCA 123 The Court 10 partial concurrency is appropriate, given that this offending comprised a chaotic course of conduct. Having indicated the individual sentences we would impose, pursuant to s 26 of the Sentencing Act 2017 (SA), we impose a single sentence of two years for these three offences. 51 Each of Counts 4 and 7 occurred close in time to the HiLux offending. They were separate incidents, but for the reasons already indicated, this was nonetheless a course of conduct the protective and deterrent response to which can, to a degree, be met proportionately with a total sentence that is less than the sum of the parts. We would order that five months of the sentence for Count 4 be made concurrent with the sentence for the HiLux offending. We would order that one month and 21 days of the sentence for Count 7 be made concurrent with the accumulated sentence for the other counts. 52 That results in a head sentence of two years and five months. We would impose a non-parole period of one year and nine months, a little over 70 per cent. There is nothing in the appellant’s personal circumstances to recommend a lower non-parole period. 53 We reduce the sentence by 38 days for time spent in custody and, like the judge, allow three months for time spent on home detention. That results in a head sentence of two years and 23 days, with a non-parole period of one year, four months and 23 days. The sentence is backdated to commence on 5 November 2024. Having regard to the appellant’s criminal history, it is not appropriate that the sentence be suspended or served on home detention. -- 12 of 12 --