THE KING v TARIKJOT SINGH [2024] SASCA 81

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE KIMBER) SCCRM-22-137 Appellant: THE KING Counsel: MR J PEARCE KC WITH MR W SCOBIE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: TARIKJOT SINGH Counsel: MR M ANDERS WITH MR J SIMPSON - Solicitor: BRIAN DEEGAN LAWYERS Hearing Date/s: 13/02/2024 File No/s: SCCRM-23-029494 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. R v SINGH [2024] SASCA 81 Judgment of the Court of Appeal (The Honourable Acting Chief Justice Livesey, the Honourable Justice Doyle and the Honourable Justice David) 27 June 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING GUIDELINES 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 - APPEALS BY CROWN - EXERCISE OF DISCRETION CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - PREMEDITATION AND METHOD OF EXECUTION CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD -- 1 of 21 -- This is a Crown appeal against sentence. The respondent pleaded guilty to the offence of murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). The sentencing Judge imposed the mandatory sentence of life imprisonment. In imposing a non-parole period, the sentencing Judge adopted a starting point of 24 years’ imprisonment, reduced to 22 years and 10 months’ imprisonment on account of the respondent’s guilty plea. The sole ground of appeal is that the sentence is manifestly inadequate. The respondent and Ms Jasmeen Kaur had commenced a relationship in 2018, which Ms Kaur ended in 2021. The respondent continued to contact Ms Kaur against her wishes, including with threats to kill himself if she did not stay with him. In February 2021, Ms Kaur provided an affidavit to police detailing the respondent’s unwanted behaviour towards her, and her fear of him. Police later cautioned the respondent for stalking. On 4 March 2021, the respondent attended a hardware store where he purchased items including cable ties, gaffer tape, gloves and a shovel. On the following day, he abducted Ms Kaur from her workplace shortly after she finished her evening shift. He drove several hours to Moralana Creek, a location near Hawker, about 400 kilometres north of Adelaide. Once there, the respondent dug a shallow grave. He placed Ms Kaur, blindfolded, in the grave with her hands and feet bound, and buried her alive. Ms Kaur died by asphyxiation. Ms Kaur’s family reported her missing on 6 March 2021. Police attended the respondent’s address that evening and spoke with him in connection with the missing person report. The respondent denied any knowledge of Ms Kaur’s whereabouts and lied about not having had contact with her. Subsequently, the respondent made admissions to the effect that Ms Kaur had killed herself, and that he buried her body in the Flinders Ranges. The respondent later accompanied police to Moralana Creek and identified the location of Ms Kaur’s grave. The respondent was arrested and charged with the murder of Ms Kaur. Shortly before his trial, the respondent pleaded guilty. Held, per the Court, granting permission to appeal and allowing the appeal: 1. The non-parole fixed by the sentencing Judge was manifestly inadequate. It failed to maintain adequate standards of sentencing and to allow it to stand would undermine confidence in the administration of justice. 2. The mandatory minimum non-parole period for the offence of murder affects the sentencing discretion in fixing a non-parole period in two main ways. First, it limits the sentencing power by imposing a ‘floor’ below which the non-parole period may not be imposed, except in exceptional circumstances. Secondly, it acts as a ‘yardstick’ or ‘benchmark’ in the same way that a maximum penalty operates. It represents the appropriate non-parole period for an offence within the least serious category of offending having regard to both subjective and objective factors. 3. A non-parole period of 28 years and six months is substituted, backdated to commence on 7 March 2021. Crimes Act 1914 (Cth) ss 16A(1), 16A(2), 17A(1); Criminal Law (Sentencing) Act 1988 (SA) s 32A(1); Criminal Law Consolidation Act 1935 (SA) s 11; Sentencing Act 2017 (SA) ss 5, 10, 11, 47, 48, 48(1), 48(3); Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA), referred to. Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485; R v A, D (2011) 109 SASR 197; R v Hallcroft (2016) 126 SASR 415; R v Peet [2018] SASCFC 91, discussed. Bahar v The Queen (2011) 45 WAR 100; Bugmy v The Queen (1990) 169 CLR 525; Director of Public Prosecutions (Cth ) v Haidari (2013) 230 A Crim R 134; Eldredge v The Queen [2020] WASCA 66; House v The King (1936) 55 CLR 499; Karim v The Queen (2013) 83 NSWLR 268; Knight v Victoria (2017) 91 ALJR 824; Munda v Western Australia (2013) 249 CLR 600; R v Karabi (2012) 220 A Crim R 338; R v Latif; Ex Parte Director of Public Prosecutions (Cth) [2012] QCA -- 2 of 21 -- 278; R v Nemer (2003) 87 SASR 168; R v Nitu [2013] 1 Qd R 459; R v Osenkowski (1982) 30 SASR 212; R v Selu; Ex Parte Director of Public Prosecutions (Cth) [2012] QCA 345; R v Stewart (1984) 35 SASR 477; R v Taylor [2022] NSWCCA 256, considered. -- 3 of 21 -- -- 4 of 21 -- R v SINGH [2024] SASCA 81 Court of Appeal – Criminal: Livesey A/CJ, Doyle and David JJA 1 THE COURT: This is an application by the Director of Public Prosecutions (SA) (‘the Director’) for permission to appeal against sentence. The respondent pleaded guilty to one count of murder, contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The sentencing Judge imposed the mandatory sentence of life imprisonment. In fixing a non-parole period, the sentencing Judge adopted a starting point of 24 years’ imprisonment, reduced to 22 years and 10 months’ imprisonment on account of his guilty plea. 2 The sole ground of appeal is that the sentence is manifestly inadequate. 3 For the reasons that follow, permission to appeal should be granted and the appeal allowed. The respondent’s non-parole period must be reconsidered by this Court. The offence 4 At around 10:00pm on 5 March 2021, the respondent abducted Ms Jasmeen Kaur shortly after she finished her shift at the Bucklands Residential Care Facility in North Plympton. He drove several hours to Moralana Creek, a location near Hawker, about 400 kilometres north of Adelaide. Once there, the respondent dug a shallow grave. He placed Ms Kaur, blindfolded, in the grave with her hands and feet bound, and buried her alive. Ms Kaur died by asphyxiation. It is not known how long it took her to die. 5 By way of background, in September 2018, the respondent and Ms Kaur commenced a relationship. Ms Kaur’s family did not approve of her relationship with the respondent and, on 4 January 2021, she ended their relationship. The respondent continued to contact Ms Kaur, including with threats to kill himself if she did not stay with him. On three occasions, he attempted to harm himself and threatened to send footage of himself and Ms Kaur together in a hotel room to members of her family in India, which he ultimately did, causing her shame. 6 In January and February 2021, the respondent had various conversations with people, including police officers and doctors, indicating that he wished to resume the relationship. 7 On 28 January 2021, Ms Kaur provided an affidavit to police detailing the respondent’s unwanted behaviour towards her, and her fear of him. She described finding him waiting for her at her car after she finished a night shift at around 10:00pm on 7 January 2021. Text messages between the respondent and Ms Kaur on 1 February 2021 show that Ms Kaur asked the respondent to stop contacting her and called him, and his actions, ‘cheap’. -- 5 of 21 -- [2024] SASCA 81 The Court 2 8 As a result of Ms Kaur’s affidavit, police spoke with the respondent on 9 February 2021, and cautioned him for stalking. There were various messages on the respondent’s telephone from late February and early March 2021 (in the month preceding the murder), which were referable to the relationship breakdown and included written motifs such as ‘cheap’, ‘wait and watch’, needing to ‘take a stand’ and ‘before going after someone, one must think from their brains’. 9 In the days preceding the offence, the respondent downloaded a map showing safety camera locations which record vehicle movements. It was last accessed in the early hours of the morning on 4 March 2021. 10 Around 2:00pm on 5 March 2021, the respondent attended a hardware store at Mile End, where he purchased items including cable ties, gaffer tape, gloves and a shovel. The respondent did not use his vehicle in connection with the murder, instead borrowing the vehicle of his housemate, Mr Gurbir Singh. Mr Singh in exchange used the respondent’s vehicle to attend a work shift at a hotel from 2:00am to 7:00am on 6 March 2021, which the respondent was originally rostered to complete. 11 From around 9:00pm on 5 March 2021 to 6:20pm on 6 March 2021, the respondent’s telephone service remained stationary at his home address. Shortly before 9:00pm the SIM card was removed from the handset and placed in a second handset. Shortly after her abduction, Ms Kaur’s phone was switched on to “Airplane mode”. 12 There was no direct evidence as to what transpired at Ms Kaur’s gravesite. 13 Ms Kaur’s family reported her missing at around 5:30pm on 6 March 2021. During the evening of 6 March 2021, police attended the respondent’s address and spoke with him in connection with the missing person report. The respondent denied any knowledge of Ms Kaur’s whereabouts and lied about not having contact with her. The respondent allowed police to briefly search his house and examine his telephone. 14 Subsequently, the respondent made various admissions to his aunt, to the effect that Ms Kaur had killed herself, and that he buried her body in the Flinders Ranges. His aunt contacted the police on 7 March 2021. Later that day, the respondent accompanied police to Moralana Creek and identified the location of Ms Kaur’s grave. Her body was located under about 30 centimetres of sand in a grave that was approximately 60 centimetres wide, 140 centimetres in length and 80 centimetres deep. Ms Kaur was lying face up and wearing her work uniform. Her hands were bound behind her back with a cable tie and tape, and her feet were bound with a cable tie and tape. She was blindfolded. There were superficial cuts around her neck. The post-mortem evidence revealed that she died by suffocation and had inhaled a significant quantity of sand after being buried alive. -- 6 of 21 -- [2024] SASCA 81 The Court 3 15 In a public bin, around 100km south of where Ms Kaur was buried, police located her work nametag, driver’s licence, bank card, socks and shoes. They also found cable ties, gloves and strands of tape consistent with those used to bind Ms Kaur. At the respondent’s home, police located her mobile telephone as well as a keyring consistent with one that she had recently purchased. 16 The respondent was arrested and charged with the murder of Ms Kaur. It can be seen that there was a strong prosecution case against the respondent. The matter was listed for trial. The respondent entered a guilty plea to the offence shortly before his trial which entitled him to a reduction of up to five percent. Victim impact statements 17 The victim impact statements express the harm, loss and injury to Ms Kaur’s family caused by her murder. They continue to suffer deeply from her loss. In particular, the terrible manner in which she was murdered, and the terror she must have experienced at being buried alive, is the source of much grief to her family. The respondent’s personal circumstances 18 The respondent was 20 years of age at the time of the offence, and 23 years of age at the time of sentence. 19 He has no prior convictions. 20 The respondent was born in India and his childhood was impoverished. He was exposed to violence as a child and reported being physically abused by his father. At the age of 17, with the financial support of his grandparents, he left India and travelled to Adelaide to commence a degree in Information Technology. He also obtained part-time employment in respite care. The respondent tendered character references from persons with whom he had worked, and from family members. They all described the offending as being out of character. 21 The respondent has suffered from compromised mental health which worsened towards the end of his relationship with Ms Kaur. On 5 January 2021, shortly after the end of his relationship, he was admitted to the Flinders Medical Centre having taken sleeping pills and reported wanting to take his own life. The respondent consulted a psychiatrist the following day who considered there was no evidence he suffered from a major mental illness. He was subsequently discharged into the care of his family. A month later he was readmitted to the Flinders Medical Centre where he gave a history of having attempted to take his own life by hanging. He was discharged the following day. 22 A report by Mr Balfour, a forensic psychologist, was tendered to the sentencing court. Mr Balfour considered that the respondent suffered from a major depressive disorder at the time of the offending, and from PTSD after the offence. He described the respondent as an immature man still amenable to rehabilitation and considered his expressions of remorse to be genuine. -- 7 of 21 -- [2024] SASCA 81 The Court 4 23 Since being remanded in custody for this offence, the respondent has experienced ongoing depression and anxiety for which he is prescribed medication. 24 The Director did not dispute on appeal (nor before the sentencing Judge) that the respondent suffered from poor mental health at the time of the offending, nor did the Director challenge Mr Balfour’s diagnoses of a major depressive disorder and PTSD. However, the Director contended that Mr Balfour’s opinion was of limited relevance given the lack of clarity as to the factual basis upon which he proceeded to diagnose the respondent. In particular, as the sentencing Judge noted, a major depressive disorder was not diagnosed during either admission to the Flinders Medical Centre. As to the diagnosis of PTSD, his Honour considered that this condition needed to be contextualised as it was the consequence of the offending itself. In any event, the Director on appeal did not challenge his Honour’s treatment of the respondent’s mental health. In addition, the Director acknowledged that the two most significant factors in mitigation on sentence were the respondent’s relative youth and his plea of guilty and associated cooperation with police. The sentencing remarks 25 The sentencing Judge considered that the offending was planned and pre-meditated and, by the time the respondent purchased the items from the hardware store on the afternoon of 5 March 2021, he had formed an intention to kill. His Honour noted that the respondent did not provide any detail as to how he managed to abduct Ms Kaur, but that she was likely placed in the boot of the vehicle and driven hundreds of kilometres to her death. His Honour said, ‘(t)he terror she felt when she was abducted, restrained and kept in the car during the long drive to Moralana Creek is difficult enough to estimate. I cannot describe the terror Ms Kaur must have experienced when she realised you were burying her alive. What is clear is that the way you chose to kill Ms Kaur was callous in the extreme.’ 26 The sentencing Judge was satisfied beyond reasonable doubt that the respondent killed Ms Kaur to punish her for not wanting to be in a relationship with him, and for reporting his stalking conduct to police, and that he killed Ms Kaur out of anger and revenge. 27 The sentencing Judge referred to Mr Balfour’s reports, the respondent’s lack of antecedents, good work history, positive character references and considered there to be ‘hope of rehabilitation.’ His Honour also considered that the respondent was genuinely remorseful for his offending; and took into account any uncertainty the respondent may face at the prospect of being deported after having completed his sentence. 28 The sentencing Judge considered the offence ‘a particularly serious one’ by virtue of the following matters: the respondent intended to kill Ms Kaur; the conduct was planned and carefully carried out; there was ‘ample time to change -- 8 of 21 -- [2024] SASCA 81 The Court 5 course’; and the terror Ms Kaur must have experienced before her death. His Honour also said, with respect correctly, that, ‘Courts must bring home to those who commit acts of violence in the context of relationship breakdown that their conduct will be treated seriously.’ 29 The sentencing Judge declined to find that there were ‘exceptional circumstances’ to justify fixing a non-parole period of less than 20 years pursuant to s 48(2)(b) of the Sentencing Act 2017 (SA) (‘the Sentencing Act’). His Honour considered that the subjective and objective factors affecting the seriousness of the offence must be evaluated in the context of the respondent’s youth, mental health, deprived background, guilty plea and cooperation with police, as well as the positive aspects of his life which suggest he is otherwise ‘a person with potential.’ As outlined earlier, after imposing the mandatory penalty of life imprisonment, his Honour turned to impose a non-parole period by adopting a starting point of 24 years, reduced on account of the respondent’s guilty plea to 22 years and 10 months’ imprisonment. Prosecution appeals against sentence 30 The principles governing an application for permission to appeal against sentence by the Director are well established. Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that amounts to an error principle.1 31 If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to grant permission to appeal even though no general point of principle will be established by the case.2 32 In the present case, the Director challenges the adequacy of the sentence on the basis that to allow the non-parole period to stand would undermine public confidence in the administration of justice and erode sentencing standards for the offence of murder. The Director also contends that sentencing for offences involving domestic violence, particularly those involving men who kill their female partners, as was the case here, is a matter of significant public concern; and the non-parole period imposed in this case does not properly reflect that concern. 1 R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. 2 R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ. -- 9 of 21 -- [2024] SASCA 81 The Court 6 33 The Director’s overarching contention is that when fixing the non-parole period, the starting point of 24 years’ imprisonment was so low that the sentence fails to maintain adequate standards of punishment for offences of this kind. Mandatory minimum non-parole period 34 The provisions governing the fixing of a non-parole period for murder are found in Part 3 Division 2 of the Sentencing Act. 35 Section 47(5)(b) provides: 47—Duty of court to fix or extend non parole periods … (5) The above provisions are subject to the following qualifications: (a) … (b) if fixing a non parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non parole period prescribed in respect of the offence is 20 years; 36 Section 48 relevantly provides: (Sub-section (1) repealed.) (2) In fixing a non parole period in respect of an offence for which a mandatory minimum non parole period is prescribed, the court may— (a) if satisfied that a non parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non parole period as it thinks fit; or (b) in the circumstances (if any) prescribed by the regulations for the purposes of this paragraph, or otherwise in exceptional circumstances, fix a non parole period that is shorter than the prescribed period. (3) Without limiting subsection (2)(b), exceptional circumstances may include the following: (a) the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct; (ab) the offence was committed in circumstances of family violence (being circumstances in which the offender, or a member of the offender's family, was a victim of family violence committed by the victim of the offence); (b) if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea; (c) the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such cooperation. -- 10 of 21 -- [2024] SASCA 81 The Court 7 (3a) In deciding whether exceptional circumstances exist for the purposes of subsection (2)(b) in relation to an offence committed in circumstances of family violence, the court must have regard to any evidence of family violence admitted in the course of the trial for the relevant offence or otherwise before the court. 37 Accordingly, for an offence of murder (as defined in s 47(12)), for which there is a mandatory penalty of life imprisonment, a court is required to impose a non-parole period of at least 20 years’ imprisonment. While a court does not need to be satisfied of any particular test to impose a longer non-parole period, a court may only impose a shorter non-parole period if satisfied there are ‘exceptional circumstances’, in line with s 48(3). 38 In this way, the statutory provisions governing the imposition of non-parole periods circumscribe the sentencing court’s discretion when fixing non-parole periods for the offence of murder. They do so by prescribing a statutory minimum which may be exceeded without legislative restriction, but which may only be reduced in ‘exceptional circumstances’. 39 As outlined earlier, in this case, the sentencing Judge declined to find ‘exceptional circumstances’ to justify fixing a non-parole period shorter than the mandatory minimum of 20 years’ imprisonment. 40 At the hearing of the appeal, an issue arose as to the correct approach to fixing a non-parole period for an offence of murder in light of the recent legislative amendments removing the statutory command previously found in s 48(1) of the Sentencing Act that the mandatory minimum represented an offence ‘at the lower end of objective seriousness.’ This requires a consideration of the text, context and purpose of ss 47 and 48 and, in particular, whether the relevant principles as explained in R v Hallcroft3 (‘Hallcroft’) remain applicable given the legislative amendments and the recent High Court decision in Hurt v The King4 (‘Hurt’). The approach in Hallcroft 41 The Court of Criminal Appeal in Hallcroft considered the applicable provisions then in place for fixing a non-parole period for the offence of murder. The now repealed provisions included a specific legislative command that the mandatory minimum non-parole period represented an offence ‘at the lower end of objective seriousness.’ 5 42 Chief Justice Kourakis (with whom Peek, Stanley, Lovell and Doyle JJ agreed) held that the statutory command as to the mandatory minimum non-parole period set a ‘benchmark’ for imposing a non-parole period for the offence of murder by reference only to the ‘objective seriousness of the offence.’ However, in fixing a non-parole period, the court was required to consider whether a longer period than 20 years’ imprisonment was warranted by reason of any objective or 3 (2016) 126 SASR 415. 4 [2024] HCA 8; (2024) 98 ALJR 485. 5 Criminal Law (Sentencing) Act 1988 (SA) s 32A(1). -- 11 of 21 -- [2024] SASCA 81 The Court 8 subjective factors. There was then a limited discretion conferred on the court to impose a shorter non-parole period if there were ‘special reasons’ to do so, arising out of the then prescribed matters.6 43 In Hallcroft, Kourakis CJ said that the meaning of the concept of ‘objective seriousness’ was not confined to the actus reas of an offence, but rather, there were ‘many diverse circumstances which may affect the objective seriousness of offences generally, and the offence of murder in particular, which extend beyond the elements of the offence.’7 Speaking generally, Kourakis CJ said that subjective factors relate to an offender’s personal circumstances, whereas objective factors are circumstances attending the commission of the offence. The Chief Justice went on to say that when imposing a non-parole period for murder, all of the objective and subjective factors will be weighed against the ‘benchmark’ of 20 years’ imprisonment, which is set by reference to objective factors alone. Where an offender’s subjective personal circumstances give little or no reason to mitigate penalty, the non-parole period will reflect the objective seriousness of the offence.8 44 As to the practical effect of the then applicable provisions on fixing a non-parole period for murder, Kourakis CJ said:9 In short, and leaving aside a reduction in the non-parole period for special reasons, the effect of s 32(5)(ab) of the CLSA is that there is no scope to give a defendant who commits an offence at the lower end of the range of objective seriousness and has mitigating personal circumstances, any lesser non-parole period than another defendant who commits an offence at the lower end of objective seriousness but has few, or no, mitigating personal circumstances. Nor is there any scope to give a defendant who commits an offence which is objectively more serious but has strong personal circumstances in mitigation, including for example a plea of guilty at the earliest opportunity a non-parole period of less than 20 years, when the circumstances would have so demanded when measured against the 20 year statutory benchmark, as a result of the statutory minimum. One would therefore expect, in practice, to see a crowding of non-parole periods around the 20 year minimum. … 45 Chief Justice Kourakis agreed with, and applied, the approach taken to a finding of ‘special reasons’ (as then operated) as articulated in R v A, D.10 It is unnecessary to address this aspect of Hallcroft as in the present case, the sentencing Judge found there was no basis to impose a non-parole period shorter than the mandatory minimum, and there was no challenge on appeal to that finding. 6 R v Hallcroft (2016) 126 SASR 415 at [40] per Kourakis CJ (Peek, Stanley, Lovell and Doyle JJ agreeing). 7 R v Hallcroft (2016) 126 SASR 415 at [42] per Kourakis CJ (Peek, Stanley, Lovell and Doyle JJ agreeing). 8 R v Hallcroft (2016) 126 SASR 415 at [48] per Kourakis CJ (Peek, Stanley, Lovell and Doyle JJ agreeing). 9 R v Hallcroft (2016) 126 SASR 415 at [50]-[51] per Kourakis CJ (Peek, Stanley, Lovell and Doyle JJ agreeing). 10 R v A, D (2011) 109 SASR 197 at [41]-[44] per Doyle CJ (with whom Duggan, Anderson and White JJ agreed) cited in R v Hallcroft (2016) 126 SASR 415 at [56]-[58] per Kourakis CJ (Peek, Stanley, Lovell and Doyle JJ agreeing). -- 12 of 21 -- [2024] SASCA 81 The Court 9 46 In R v A, D, Doyle CJ (with whom Duggan, Anderson and White JJ agreed) considered the significance of the mandatory minimum, and relevantly said:11 If considering whether a non-parole period longer than the mandatory period should be fixed, the court must consider all “objective or subjective factors affecting the relative seriousness of the offence”. This must mean all factors that are relevant according to established principles. It is well-established practice to treat all relevant factors in sentencing as either objective or subjective. That must be what Parliament had in mind. Accordingly, the court will ask itself whether the factors that are relevant to the fixation of a non-parole period according to established principles support or warrant a longer non-parole period than 20 years. But the mandatory period is not just a number. It identifies a non-parole period appropriate “for an offence at the lower end of the range of objective seriousness”. So the court must ask itself whether, bearing in mind that a 20 year non-parole period is an appropriate non-parole period for an offence of murder at the lower end of the range of objective seriousness, this particular offence (considering all relevant factors according to established principles) warrants a longer non-parole period. By characterising the mandatory period as appropriate for “an offence at the lower end of the range of objective seriousness”, s 32A will increase non-parole periods. Experience indicates that 20 years is a high non-parole period for an offence of murder “at the lower end of the range of objective seriousness”. Parliament must have intended to encourage longer non-parole periods for the offence of murder. In this way the mandatory or prescribed period operates as a yardstick or benchmark. Parliament has chosen to identify 20 years as an appropriate non-parole period for an offence of murder “at the lower end of the range of objective seriousness”. It is a strange benchmark. The benchmark is identified by reference only to objective seriousness. The court has to compare a particular case, taking account of objective and subjective factors, with a benchmark that is affected by objective factors only. The court is not able to compare like with like. The process is not easy to explain. But this is the statutory task. We emphasise that although the court fixes such non-parole period as it thinks fit, it fixes the non-parole period that is fit in light of the comparison that must be made. The court does not exercise a discretion at large. 47 This approach was approved by the Court in Hallcroft and R v Peet (‘Peet’).12 In Peet, after referring to R v A, D and Hallcroft, the Court said that ‘the mandatory minimum non-parole period does not reflect the objective seriousness of intentional murder.’ 48 In summary, a purpose and intention of the applicable provisions was to increase the length of non-parole periods for murder, given that ‘experience indicates that a 20 year non-parole period is a high non-parole period for an offence of murder.’13 Further, given that the minimum was set by reference to a standard which reflected only objective considerations, giving less scope for mitigatory 11 R v A, D (2011) 109 SASR 197 at [35]-[39] per Doyle CJ (with whom Duggan, Anderson and White JJ agreed). 12 R v Peet [2018] SASCFC 91 at [72]-[73] per the Court (Kourakis CJ, Doyle and Hinton JJ). 13 R v A, D (2011) 109 SASR 197 at [36] per Doyle CJ (with whom Duggan, Anderson and White JJ agreed). -- 13 of 21 -- [2024] SASCA 81 The Court 10 subjective considerations, this meant that there was likely to be a ‘crowding’ of non-parole periods around this minimum.14 49 The extrinsic materials confirm that the manifest purpose of the now amended legislative provisions, when first introduced, was to give effect to a general increase in the length of non-parole periods for offences subject to mandatory minimum non-parole periods. The Second Reading Speech and Explanation of Clauses of the Bill, introducing the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Bill and the then operative scheme, outlined that mandatory minimum non-parole periods were designed to afford primacy to the protection of the safety of the community.15 Moreover, amendments to the Bill in the committee stages when introducing the ‘special reasons’ test, were accompanied by an explanation that the mandatory minimum non-parole period was directed towards increasing non-parole periods, in particular for those offences which were not examples of offences at the lower end.16 Abolition of the ‘partial defence’ of provocation and s 48(1) of the Sentencing Act 50 The current legislative provisions governing mandatory minimum non-parole periods were introduced by the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (‘the Amending Act’). The Amending Act abolished the common law ‘partial defence’ of provocation which operated to reduce an offender’s liability for an intentional killing of another from murder to manslaughter. Another aspect of the Amending Act was to remove the former s 48(1) of the Sentencing Act which provided that a mandatory minimum represented ‘the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies’. The Amending Act also changed the criterion for imposing a non-parole period shorter than the mandatory minimum from ‘special reasons’ having regard to a closed set of considerations to ‘exceptional circumstances’ having regard to open textured considerations. 51 It is in the context of these legislative amendments that the question arises as to the significance of the mandatory minimum to the correct approach to fixing a non-parole period, given there is now no statutory command that the mandatory minimum represents ‘an offence at the lower end of objective seriousness.’ That is, the issue for consideration is whether the principle outlined in R v AD, Hallcroft and Peet (namely, that the mandatory minimum operates as a ‘yardstick’ or ‘benchmark’ for an offence of murder at the lower end of the range of objective seriousness) remains authoritative. The effect of the legislative amendments was not raised at first instance, nor the subject of any submissions before the sentencing Judge. However, the issue now falls to be considered when determining whether 14 R v Hallcroft (2016) 126 SASR 415 at [51] per Kourakis CJ (Peek, Stanley, Lovell and Doyle JJ agreeing). 15 Legislative Council, Hansard 13 March 2007, page 1566. 16 Legislative Council, Hansard 13 May 2007, page 89. -- 14 of 21 -- [2024] SASCA 81 The Court 11 this Court is satisfied that the non-parole period imposed is manifestly inadequate as contended for by the Director. 52 Determining the correct approach to fixing a non-parole period for the offence of murder, and in particular the significance of the mandatory minimum, requires a consideration of the text, context and purposes of ss 47 and 48 of the Sentencing Act, as amended. 53 Sections 47 and 48 of the Sentencing Act modify the general principle that a non-parole period represents the minimum proportion of the head sentence that is required to be served by an offender having regard to the circumstances of the offending and the offender.17 In imposing a non-parole period which exceeds the mandatory minimum, a court does not need to be satisfied of any particular criterion. However, a court may only impose a shorter non-parole period if satisfied there are ‘exceptional circumstances’ in accordance with s 48(3). 54 For offences of murder (which have a mandatory penalty of life imprisonment), the definition of ‘sentence’ includes the ‘fixing, extending or negating of a non-parole period.’18 In undertaking the instinctive synthesis involved in imposing sentence (including, relevantly, when fixing a non-parole period for the offence of murder), a court must apply common law sentencing principles as provided for by ss 10 and 11 of the Sentencing Act. Section 10 sets out general sentencing principles which a court must apply when imposing sentence (including the common law principle of proportionality), and s 11 outlines the factors a court must take into account (including the nature, circumstances and seriousness of the offence). 55 In Hurt,19 the High Court recently considered the approach to the sentencing of an offender for a Federal offence for which a statutory minimum term of imprisonment was prescribed. The appellants contended that a statutory minimum sentence cannot function as a ‘yardstick’ representing the least worst possible case warranting imprisonment against which the case before the court at the time can be measured, in circumstances where the court retains discretions such as not to record any conviction and not to impose any sentence of imprisonment. The appellants also submitted that the function of a statutory minimum was confined in its function to a form of ‘final check’ at the end of the sentencing process; that is, a mere numerical limit upon the sentence of imprisonment that may be imposed. Accordingly, the typical process for determining a sentence would be largely unchanged except to the extent that if the sentencing judge determines that a sentence should be imposed that is lower than the minimum then, subject to any exceptions, the sentence must be increased to the minimum. 17 Bugmy v The Queen (1990) 169 CLR 525 at 531 per Mason CJ and McHugh J, and 538 per Dawson, Toohey and Gaudron JJ; Knight v Victoria (2017) 91 ALJR 824 at [8] per the Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). 18 Sentencing Act 2017 (SA) s 5. 19 [2024] HCA 8; (2024) 98 ALJR 485. -- 15 of 21 -- [2024] SASCA 81 The Court 12 56 The High Court rejected the appellants’ contentions, and considered that the appellants’ construction was inconsistent with the general sentencing provisions set out in Pt 1B of the Crimes Act 1914 (Cth), including ss 16A(1) and (2) and 17A(1). Gageler CJ and Jagot J explained: A statutory minimum sentence and a statutory maximum sentence are each "circumstances of the offence" and "circumstances of the case" of fundamental importance for the purposes of ss 16A(1) and (17A(1)). A statutory minimum sentence and a statutory maximum sentence have to be considered in deciding if there is no sentence other than imprisonment that is "appropriate in all the circumstances of the case" and, if so, a sentence that is "of a severity appropriate in all the circumstances of the offence". To refuse to consider a statutory minimum sentence in deciding if there is no sentence other than imprisonment is appropriate in all the circumstances of the case and, if so, what sentence to impose or what order to make is irreconcilable with the directions in ss 16A(1) and 17(A)(1) of the Crimes Act. A statutory minimum sentence and a statutory maximum sentence are also "other matters" which a court must take into account by s 16A(2). Accordingly, ss 16A(1) and (2) and 17A (1) do not speak against a statutory minimum sentence functioning as a yardstick representing the least worst possible case warranting imprisonment against which the case before the court at the time can be measured. To the contrary, they direct consideration of the statutory minimum sentence at all steps in the sentencing process, as opposed to the appellant’s case, which confines the function of the statutory minimum sentence to a final check on the term of any sentence of imprisonment by operation of which any sentence below the mandated minimum must be increased to the minimum (before applying any discount for a guilty plea or cooperation with law enforcement agencies). In directing the consideration of the statutory minimum sentence at all steps in the sentencing process, the statutory minimum sentence is thereby adapted to the function of acting as a yardstick representing the least worst category of case for which a sentence of imprisonment is required (before applying any potential discounts for a guilty plea or cooperation with law enforcement agencies) against which the case before the court can be assessed. … That these provisions enable a court to impose less than the statutory minimum sentence in appropriate cases by an exercise of power under one or other of these provisions does not mean that the statutory minimum sentence is incapable of acting as a yardstick representing the Commonwealth Parliament's view of the least worst possible case warranting imprisonment against which the case before the court at the time can be measured. 57 The decision in Hurt20 approved the approach taken by various intermediate appellate courts to minimum sentences enacted in relation to ‘people smuggling offences’ in the Migration Act 1958 (Cth), which involved that minimum acting as a yardstick which informs the usual sentencing approach.21 20 Hurt v The King [2024] HCA 8 at [89] per Edelman, Steward and Gleeson JJ. 21 Bahar v The Queen (2011) 45 WAR 100 at 113 [58] per McLure P (Martin CJ and Mazza J agreeing); R v Karabi (2012) 220 A Crim R 338 at 345 [35] per Muir JA (Fraser and Chesterman JJA agreeing); R v Latif; Ex Parte Director of Public Prosecutions (Cth) [2012] QCA 278 at [20], [22] per Fraser JA (Gotterson JA and Mullins J agreeing); R v Selu; Ex Parte Director of Public Prosecutions (Cth )[2012] QCA 345 at 8 [29] per McMurdo P (in dissent); R v Nitu [2013] 1 Qd R 459 at 473 [36]-[37] per Fraser JA (Lyons J agreeing); Director of Public Prosecutions (Cth ) v Haidari (2013) 230 A Crim R 134 at -- 16 of 21 -- [2024] SASCA 81 The Court 13 58 While Hurt was considering Commonwealth provisions, the same principles have been applied in respect of State provisions imposing similar legislative schemes with mandatory minimums.22 59 For the reasons explained in Hurt, the mandatory minimum non-parole period for murder signifies the seriousness with which the legislature views the offence of murder, and operates as a yardstick (representing the least serious instances of the offence of murder) against which to measure a proposed non-parole period. It follows from the terms of ss 10 and 11 of the Sentencing Act, which require a court to have regard to principles of proportionality and the seriousness of the offence, that the mandatory minimum is to be considered as part of the sentencing process from the outset, and at all stages of the sentencing process. It does not operate as a mere ‘final check’, but rather as a yardstick or benchmark representing the least serious category of case, in the same way that the maximum penalty represents the worst category of offending. 60 Moreover, where a statutory scheme imposes a mechanism for departure from the mandatory minimum only in prescribed circumstances, as provided for by ss 47(2)(b) and 48(3), this tends to reinforce the ‘yardstick’ role of a minimum sentence.23 The sentence is to be determined recognising that yardstick as part of a synthesis of all other relevant sentencing factors.24 61 Returning to the present case, the Amending Act removed the partial defence of provocation and introduced other provisions to provide positive defences to a person who kills in circumstances involving domestic violence (for example, Part 3 of the Amending Act). Notwithstanding the introduction of other positive defences, it remains possible that a person who has been the subject of domestic violence and killed the perpetrator could be convicted of the offence of murder; and a person who might have otherwise been sentenced for the offence of manslaughter will fall to be sentenced for the offence of murder. 62 The relevant parliamentary materials do not expressly address the aspects of the Amending Act relating to the fixing of mandatory non-parole periods. However, when considering the suite of legislative amendments as a whole, it is apparent that the purpose in removing s 48(1) was to ensure that persons who kill their partners after suffering domestic violence (in circumstances that may have otherwise enlivened the ‘partial defence’ of provocation, but which do not attract one of the amended defences), and are convicted of murder, are not precluded from a non-parole period at, or potentially below, the mandatory minimum. If s 48(1) had not been removed, it would be difficult to contend that a murder involving the 144 [40] per Harper JA (Weinberg and Priest JJA agreeing); Karim v The Queen (2013) 83 NSWLR 268 at 282 [44] per Allsop P (Bathurst CJ, McClellan CJ at CL, Hall and Bellew JJ). 22 See for eg, Eldredge v The Queen [2020] WASCA 66 at [41]-[55] per the Court (Buss P, Mazza and Mitchell JJA) and R v Taylor [2022] NSWCCA 256. 23 Hurt v The King [2024] HCA 8 at [104] per Edelman, Steward and Gleeson JJ. 24 Hurt v The King [2024] HCA 8 at [39] per Gageler CJ and Jagot J. -- 17 of 21 -- [2024] SASCA 81 The Court 14 intentional killing of a domestic partner was at the lower end of the range of objective seriousness given the decisions of Hallcroft and Peet.25 63 The ‘mischief’ to which the amendments which abolished s 48(1) was directed was a state of affairs that had not previously existed. That is, persons who could otherwise have availed themselves of a ‘partial defence’ of provocation and, if successful, would be sentenced for manslaughter, having instead to be sentenced for the offence of murder, with the corresponding mandatory minimum non-parole period, where the offending could not reasonably be described as at the lower end of objective seriousness. That being so, the Amending Act does not interfere with the legislature’s previously implemented general intention, through the provisions relating to mandatory minimum non-parole periods, to affect a general increase in non-parole periods for the offence of murder. The removal of s 48(1) was not intended to affect some general lowering of the standard of punishment for offences of murder. 64 Accordingly, the mandatory minimum non-parole period for the offence of murder affects the sentencing discretion in fixing a non-parole period in two main ways. First, it limits the sentencing power by imposing a ‘floor’ below which the non-parole period may not be fixed, except in exceptional circumstances. Secondly, it acts as a ‘yardstick’ or ‘benchmark’ in the same way that a maximum penalty operates and represents the appropriate non-parole period for an offence within the least serious category of offending, just as the maximum penalty is for offences within the worst category of offending. 65 Further, the legislative amendment to s 48(1), by removing the tether of the mandatory minimum to ‘objective seriousness of the offending’, means that an assessment of the yardstick representing the least serious examples of the offence of murder no longer precludes consideration of subjective factors.26 It removes the ‘strange benchmark’ to which Doyle CJ referred in R v A, D27 and replaces it with one that takes account of objective and subjective factors. 66 The definition of the offence of murder in s 47(12) of the Sentencing Act includes all forms of the offence of murder, including not only accessorial liability and constructive murder but also killings involving an intention to cause grievous bodily harm as well as reckless and intentional killings. As such, the mandatory minimum is unlikely to represent the appropriate non-parole period for a pre-meditated, intentional killing. However, this will now need to be considered after taking into account all factors including subjective factors such as the offender’s relevant personal circumstances. 67 As explained earlier, the tethering of the mandatory minimum to a yardstick defined by reference only to the ‘objective seriousness of the offending’, meant 25 [2018] SASCFC 91 at [75] per the Court (Kourakis CJ, Doyle and Hinton JJ). 26 Cf R v Hallcroft (2016) 126 SASR 415 at [46]-[47] and [49]; R v Peet [2018] SASCFC 91 at [75] per the Court (Kourakis CJ, Doyle and Hinton JJ). 27 R v A, D (2011) 129 SASR 197 at [38] per Doyle CJ. -- 18 of 21 -- [2024] SASCA 81 The Court 15 that there was likely to have been a crowding of sentences around the 20 year minimum. Now that the mandatory minimum reflects the least serious category of case having regard to both objective and subjective considerations, there is reduced scope for crowding to occur. Manifest inadequacy 68 Having considered the correct approach to the mandatory minimum when fixing a non-parole period for murder, it is now necessary to consider the Director’s challenge to the adequacy of the non-parole period fixed in this case. As outlined earlier, the sentencing Judge adopted a starting point of 24 years’ imprisonment reduced on account of the guilty plea to 22 years and 10 months’ imprisonment. 69 It is convenient to first consider the objective seriousness of the respondent’s offending. There were several egregious features to the offending, including the following matters. 1. The respondent’s conduct was premeditated and involved a considerable degree of planning including arranging an alibi, using another person’s vehicle rather than his own, and conducting enquiries about the location of highway safety cameras, all presumably to avoid detection. The respondent also purchased a number of items from a hardware store on the previous day which were used to carry out the murder such as a shovel, rope and cable ties. 2. The respondent formed an intention to kill Ms Kaur on the previous day, and planned it prior to purchasing items from the hardware store to facilitate her murder. He then abducted her and drove several hundreds of kilometres before burying her alive. He had numerous opportunities to reconsider and reflect on his decision to murder Ms Kaur, yet persisted in committing the offence. 3. He committed the murder in order to punish Ms Kaur for not wanting to be in a relationship with him, and for reporting his earlier conduct to the police. 4. The offending was not only pre-meditated but occurred against a background of his repeated efforts to re-establish their relationship, including the respondent sending videos to her family in an attempt to shame her, and continuing to communicate with her against her wishes. The respondent had also previously attended at Ms Kaur’s workplace at night when she had finished an evening shift. To that extent, the offence was committed against a background of a species of domestic violence, and as an act of retribution against a former partner. 5. The respondent was cautioned for allegedly stalking Ms Kaur. Police intervention did not deter him from committing the offence. -- 19 of 21 -- [2024] SASCA 81 The Court 16 6. The manner by which the respondent committed the offence was particularly abhorrent. He did so after abducting Ms Kaur, and travelling several hundred kilometres with her restrained in the vehicle before burying her alive, whereupon she died of asphyxiation. The method by which he killed Ms Kaur was particularly terrifying and degrading given that she would not have known her fate for several hours whilst restrained in the vehicle, and she was buried alive in a shallow grave, at night, in a remote location whilst bound, blindfolded and utterly helpless to resist. 70 By virtue of those features of the offending, this was an objectively very serious example of the offence of murder. While it is always possible to think of more serious examples of murder, this offence fell at the upper end of the scale of seriousness for an offence of this type. In short, it was premeditated, calculated, occurred against a background of stalking, and was committed in retribution for Ms Kaur leaving the relationship. The manner by which she was murdered was particularly terrifying and degrading. The observations of King CJ in R v Stewart28 remain relevant: … Examples of categories of murder calling for longer non parole periods than I will fix, in the present case, would be multiple murders, terrorist murders, murders in the course of organised crime and certain other types of premeditated, cold-blooded murder, murders committed in then course of armed robbery and certain types of sexual crime, and murder of prison officials, police officers and other officials connected with law enforcement and the administration of justice. That, of course, is not intended to be an exhaustive list of categories of murders which would be treated more seriously than the present one. Nor is the present crime in the least serious category. Examples of types of crimes in which shorter periods of non-parole should be considered are those committed by first offenders, and particularly by first offenders in compassionate circumstances, unpremeditated killings occurring in a sudden quarrel or emotional disturbance, and crimes in which the proved intent was not an intent to kill, but an intent to do grievous bodily harm. 71 The respondent’s youth and major depressive disorder were relevant personal circumstances for the sentencing Judge to take into account. However, those matters did little to mitigate the seriousness of the offending, bearing in mind its calculated and pre-meditated nature. The respondent had numerous opportunities over a considerable period of time to reconsider committing the offence. This was a case where the respondent’s youth, while relevant, had less of a mitigatory role to play by reason of the seriousness of the offending. Condign punishment called for a significant denunciatory sentence. It was of importance that the non-parole period afforded proper recognition to the human dignity of the victim.29 28 (1984) 35 SASR 477 at 478-479 per King CJ. 29 Munda v Western Australia (2013) 249 CLR 600 at [53]-[55] per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ; R v Peet [2018] SASCFC 91 at [89] per the Court (Kourakis CJ, Doyle and Hinton JJ). -- 20 of 21 -- [2024] SASCA 81 The Court 17 72 Given the egregious features of the offending, and notwithstanding the appellant’s favourable personal circumstances (including his lack of prior convictions and good employment history), we are satisfied the uplift of four years from the mandatory minimum sentence (which does not usually represent an intentional murder) was manifestly inadequate having regard to both the objective and subjective factors affecting the relative seriousness of the offence. The non-parole period failed to maintain adequate standards in sentencing and is so low that it justifies a grant of permission and this Court’s intervention. To allow it to stand would undermine the administration of justice. 73 We grant permission to appeal, allow the appeal and quash the non-parole period. 74 On resentencing the respondent, after imposing the mandatory life sentence, and having regard to the yardstick of the mandatory minimum, and the objective and subjective factors outlined above, we adopt a starting point for the non-parole period of 30 years, reduced on account of the respondent’s guilty plea to 28 years and six months. 75 The non-parole period is to commence from 7 March 2021. -- 21 of 21 --