STEVEN JOHN TIPPING v THE KING [2023] SASCA 17

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DEUTER) DCCRM-15-2523 & DCCRM-20-1014 Appellant: STEVEN JOHN TIPPING Counsel: MR N VADASZ - Solicitor: VADASZ LAWYERS Respondent: THE KING Counsel: MS K INGLETON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 07/09/2022 File No/s: SCCRM-22-164 & 22-247 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. TIPPING v THE KING (No 2) [2023] SASCA 17 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David) 23 February 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM The appellant appeared before two different juries for two separate and unrelated incursions into crime. These trials occurred close in time to one another. The appellant was found guilty by both juries and was sentenced for both criminal incursions at the same hearing. The appellant appeals against conviction on the ground of a miscarriage of justice. The appellant contended that the trials occurred so close together that there was an appreciable risk the jury for the second trial would become aware of the appellant’s first trial and the subject offending. The appellant also appeals against sentence on the ground of manifest excess. Held, per the Court, granting permission to appeal against both conviction and sentence, dismissing the appeal against conviction but allowing the appeal against sentence: 1. The proximity of the trials does not amount to a miscarriage of justice. 2. The sentencing judge erred in setting a non-parole period. -- 1 of 15 -- 3. The sentence imposed in the District Court is set aside and the appellant is re-sentenced. Criminal Law Consolidation Act 1935 (SA) ss 19(2), 19AB(2), 20(4) and 23(3); Criminal Procedure Act 1921 (SA) s 158; Sentencing Act 2017 (SA) s 47(1)(b), referred to. Brawn v The King [2022] SASCA 96; Dupas v The Queen (2010) 241 CLR 237; Filippou v The Queen (2015) 256 CLR 47; Hofer v The Queen (2021) 395 ALR 1; House v The King (1936) 55 CLR 499; Jago v District Court of New South Wales (1989) 168 CLR 23; JGS v The Queen (No 2) [2022] SASCA 72; Kentwell v R (2014) 252 CLR 601; Nudd v R (2006) 80 ALJR 614; Pateras v The Queen [2021] SASCA 107; R v Glennon (1992) 106 ALR 177; R v McNamara (2009) 105 SASR 38; R v Qaumi and Qaumi (2016) NSWSC 1473; R v Riccardi (2017) 128 SASR 571; R v Roberts [2016] SASCFC 41; R v Shepperbottom (2001) 121 A Crim R 69; R v Wright [2019] SASCFC 128; Stock v The Queen [2021] SASCA 116; Weiss v the Queen (2005) 224 CLR 300; Wilde v The Queen (1987- 1988) 164 CLR, considered. -- 2 of 15 -- TIPPING v THE KING (No 2) [2023] SASCA 17 Court of Appeal – Criminal: Livesey P, Lovell and David JJA 1 THE COURT: In September 2021 the appellant was tried before a jury in the District Court of Adelaide on charges of aggravated assault causing harm and aggravated threatening to cause harm. The trial did not finish until 11 October 2021. He was found guilty of both charges. On 13 October 2021 the appellant was tried before a different jury in the District Court of Adelaide on charges of recklessly causing serious harm and leaving the scene of an accident; the facts underpinning the charges were unrelated to the facts of the first trial. He was found guilty of both charges. The appellant appeals that the trials occurred so close together there was an appreciable risk that jurors on the second trial may have become aware of the earlier trial. The risk of contamination of the second trial amounted to a miscarriage of justice. 2 The appellant also appealed the sentences imposed for the offending. Background The 2015 offending 3 On 8 July 2015, Senior Constable Jelfs (‘Jelfs’) attended the appellant’s home at which the appellant and Jelfs engaged in conversation. Jelfs proceeded to arrest the appellant due to an outstanding warrant. The appellant resisted, grabbed Jelfs and punched him twice to the head. They grappled and the appellant and Jelfs fell with the appellant landing on top. The appellant stood over Jelfs, punched and kicked him and then threatened that he was going to get Jelfs’ gun and shoot him. Jelfs felt tugging on his belt adjacent to his gun. The appellant was arrested following the arrival of other officers. Jelfs suffered from both physical and psychological injuries as a result of the altercation. 4 The appellant was found guilty of, and sentenced for, the offences of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act (1935) (SA) (‘CLCA’) and aggravated threatening to cause harm contrary to s 19(2) of the CLCA. The 2019 offending 5 The appellant and the victim frequently engaged in arguments due to a break down in a tenancy relationship. On 22 September 2019, the appellant, while driving, was arguing with the victim who was riding his bicycle. The appellant lost his temper and deliberately turned his vehicle into the victim. The victim was run over by both the appellant’s vehicle and the attached trailer and dragged for 4 to 5 metres. 6 Having stopped his vehicle, the appellant got out and moved the victim to the side of the road. He called ‘000’ but gave limited information to the operator. -- 3 of 15 -- [2023] SASCA 17 The Court 2 Despite being told to stay on the phone, the appellant hung up and left before the arrival of emergency services. The victim suffered from life threatening injuries. 7 The appellant was found guilty of, and sentenced for, the offences of recklessly causing serious harm contrary to s 23(3) of the CLCA and with leaving an accident scene after causing harm by careless driving contrary to s 19AB(2) of the CLCA. Appeal Against Conviction Appeal ground 8 The ground of appeal against conviction for the 2019 offending is: The verdict of the jury is unsafe in circumstances where the trial at bar was conducted in the same week, and in the same court house, as another, earlier trial in which the jury found this [appellant] guilty on a charge of aggravated causing harm resulting in an unfair trial and a consequential miscarriage of justice. 9 Permission to appeal and an extension of time are required. Procedural history 10 The appellant alleged a miscarriage of justice due to the proximity of the two trials. The appellant submits there was a risk that the jury for the second trial would become aware of his first trial. It is necessary to set out the procedural history of both jury trials. 11 The trial for the 2015 offending commenced on 28 September 2021. The prosecution made an application to suppress the identity of the appellant before the jury were empanelled to protect the appellant’s right to a fair trial for the 2019 offending. This application was granted, and an order was made supressing the appellant’s identity until the completion of the second trial which was due to commence on 13 October 2021. 12 The jury for the first trial was empanelled on 28 September 2021 and received standard directions to avoid conversations with anyone they might not know within the precincts of the court and Gouger Street and to not discuss the facts of the case with anyone who was not a fellow juror. The jury delivered their guilty verdict on 11 October 2021. 13 On 8 October 2021, defence counsel applied to have the second trial vacated. The judge who heard this application inquired into the jury induction process and refused the application. In his reasons the judge said:1 I can indicate that the results of my inquiries are that the new jury pool were inducted last week, they are inducted in three groups, they come into the court into the jury pool room for induction and are then sent away. They are advised not to walk around the precincts of 1 Transcript of Proceedings, R v Tipping (District Court of South Australia, DCCRM-20-1014, His Honour Judge Soulio, Friday 8 October 2021) at p4. -- 4 of 15 -- [2023] SASCA 17 The Court 3 the court at all or interact with anyone in the court and, therefore, my understanding is that there could be no contact between the new jury pool members and any current jury. The jury pool for the new sitting is divided into groups, only one of those groups has been back for trials this week and I can direct that a section of the jury pool which has not been involved in any matter can be brought in for the purpose of this trial. So my view is that there is no cross contamination between the current jury and the new jury pool and, therefore, the matter can proceed. 14 The jury panel for the second trial were inducted on 1 October 2021. The second trial commenced on 13 October 2021 and the jury were empanelled on 14 October 2021. 15 Prior to empanelment, the jury panel for the second trial were directed to excuse themselves if they knew any of the persons involved or something about the facts of the case. Once empanelled, the judge gave further directions that any decision must not be made on information obtained outside the courtroom, that they must avoid situations that may possibly impair their impartiality and that they must avoid conversations with people around or near the court building. The trial judge reminded the jury of their collective responsibility to inform the Court if a fellow juror breaches the instructions. Evidence 16 On appeal, there was a dispute about the advice given to the appellant regarding the risk of contamination and instructions to proceed with a jury for the second trial. The Court heard evidence from the appellant and Mr Moen, counsel for the applicant for both trials. 17 The appellant gave evidence that, for the second trial, he wanted a trial by judge alone but agreed to not pursue the application so that the matter could be dealt with expeditiously. The appellant said there was no discussion with Mr Moen about the risks enlivened by the proximity of the trials. 18 Mr Moen gave evidence that he kept contemporaneous notes of his meetings with the appellant. He referred to these notes when giving evidence. Mr Moen stated that he was concerned about the proximity of the trials and possible contamination. Mr Moen said that he had advised the appellant about the possible risk of jury contamination and that the appellant had instructed him that he wanted the second trial to proceed before a jury. 19 Where the evidence conflicts, the Court prefers Mr Moen’s evidence. We find that the appellant was aware of the risks of conducting the trials in close proximity and instructed Mr Moen that he wanted to proceed with the second trial before a jury, withdrawing an application for a trial by judge alone. Nonetheless, the issue remains as to whether there has been a miscarriage of justice. -- 5 of 15 -- [2023] SASCA 17 The Court 4 Submissions 20 The appellant submits that the miscarriage of justice is the broad risk of contamination which is not limited to the physical interactions of the two juries. 21 The October jury pool was divided into panels, with panels 1, 2, 3 and 4 being inducted on 30 September 2021 and panels 5 and 6 being inducted on 1 October 2021. The jury panel for the second trial was panel 5, and it was agreed that it was unlikely those jurors entered the court until empanelment on 14 October 2021. On 5 October 2021, the first trial continued whilst other jury trials, comprised of jurors from October panels 1, 2, 3, 4, and 6, were just commencing. 22 The appellant submitted that, from such overlap, October jury panels 1, 2, 3, 4 and 6 acquired knowledge of the first trial. This, in turn, enlivens the risk that panel 5 jurors would become aware of the first trial by talking with October jury panels 1, 2, 3, 4 and 6. This risk existed until the guilty verdict for the second trial on 20 October 2021. 23 The appellant further submitted that the standard jury directions given in the second trial were inadequate. In these circumstances, the judge for the second trial should have been made aware of the first trial so that specific questions regarding the appellant’s identity could be answered and precautions implemented. The absence of special precautions heightened the risk of contamination. 24 The risk, the appellant submitted, was “incalculable”. The appropriate solution was to postpone the second trial.2 The appellant submitted that a fair trial and breach of fairness are determined by an intuitive judgment.3 An error that enlivens a miscarriage of justice can go to the form of the trial or the manner in which it was conducted,4 but it is impossible to reduce miscarriages of justice to a single formula.5 25 The respondent submitted that the evidence established a narrow and unlikely window for jury contamination. Namely, the jury panel for the second trial were inducted on 1 October 2021 approximately between 9:00am and 11:00am. During induction, it is ordinary practice for jurors to be advised to not walk around the court and to not speak to anyone. Also on 1 October 2021, the first trial resumed at 10:05am, with the jury entering at 10:16am. The trial was in session until the jury left the courtroom at 11:26am, with the judge leaving the bench at 11:30am. The trial resumed at 11:57am. The opportunity for the jury panel for the second trial to see the appellant is limited to before 9:00am, approximately an hour before the first trial resumed, or between 11:30am and 11:57am, presuming the jury panel for the second trial stayed in the court building. Given this window, it was submitted to be unlikely that each group of jurors interacted or that the jury panel for the second trial saw the appellant. Further, besides unlikely observations, the 2 R v Qaumi and Qaumi (2016) NSWSC 1473. 3 Jago v District Court of New South Wales (1989) 168 CLR 23 at [5]. 4 Wilde v The Queen (1987-1988) 164 CLR, 373. 5 Nudd v R (2006) 80 ALJR 614 at [16]. -- 6 of 15 -- [2023] SASCA 17 The Court 5 order supressing the appellant’s identity meant that the jury pool for the second trial could not link the first trial to the appellant. In these circumstances, the judge’s jury directions for the second trial were sufficient to guard against the risk of contamination. 26 It was submitted that the risk of contamination put forth was speculative given the absence of evidence. As such, this Court should rely on the experience of the law that assumes jurors approach their tasks conscientiously.6 Consideration 27 Sub-section 158(1)(c) of the Criminal Procedure Act (1921) (SA) (‘CPA’) authorises this Court to allow an appeal where, on any ground, there was a miscarriage of justice. This provision extends to cases where, whether as a result of an irregularity or otherwise, the defendant had not received a fair trial, being a trial according to law.7 In Hofer v The Queen, Gaegler J set out the threshold for a miscarriage of justice:8 Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect", an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. (Citations omitted) 28 Accordingly, the issue in this case is whether the risk of jury contamination due to the proximity of the trials could have realistically affected the guilty verdict delivered by the jury. 29 In deciding this issue, this Court must start from the basis that jurors approach their tasks conscientiously.9 The Court must consider the capacity of the jury to give verdicts only on admissible evidence, uninfluenced by extraneous considerations.10 30 R v Glennon considered an application for a permanent stay due to media publicity of a priest, the accused, charged with sexual offences.11 The High Court made relevant observations regarding the possibility of external influences on jurors and an unfair trial. Mason CJ and Toohey J said:12 6 Dupas v The Queen (2010) 241 CLR 237 at [26]. 7 Brawn v The King [2022] SASCA 96 at [28]; Weiss v the Queen (2005) 224 CLR 300 at [45]; Filippou v The Queen (2015) 256 CLR 47 at [13]. 8 Hofer v The Queen (2021) 395 ALR 1 at [123]. 9 JGS v The Queen (No 2) [2022] SASCA 72 at [183]; Dupas v The Queen (2010) 241 CLR 237 at [26]. 10 JGS v The Queen (No 2) [2022] SASCA 72 at [184]; Dupas v The Queen (2010) 241 CLR 237 at [29]. 11 (1992) 106 ALR 177. 12 R v Glennon (1992) 106 ALR 177, 185. -- 7 of 15 -- [2023] SASCA 17 The Court 6 The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. 31 In the same judgment, Brennan J observed that:13 Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial. 32 The common law acknowledges the imperfections of jury trials. The standard safeguards that limit a risk of contamination and protect jurors from making decisions on extraneous information are accepted to be sufficient to ensure a fair trial, unless something more can be shown. While it is uncommon to run jury trials involving the same defendant in close proximity, the risk of contamination could not have realistically affected the verdict of guilt returned by the jury of the second trial; the safeguards were sufficient. The risk of contamination that came with the proximity of these trials did not amount to a miscarriage of justice. 33 If, contrary to this Court’s view, there has been a miscarriage of justice, the proviso found in s 158(2) of the CPA justifies the dismissal of this appeal. Some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso.14 That is not the case here. The determination of whether no substantial miscarriage of justice has occurred, as required by s 158(2) of the CPA, is undertaken by having regard to the nature of the irregularity considered within the context of the particular circumstances of the trial.15 The question to be determined in this case is whether the risk of jury contamination amounted to a substantial miscarriage of justice. The risk of contamination enlivened by the proximity of the trials does not amount to a substantial miscarriage of justice as the safeguards and jury directions sufficiently preserve the fairness to which the appellant is entitled. 34 The appellant is granted an extension of time and permission to appeal. The appeal is dismissed. Appeal Against Sentence 35 The appellant was sentenced to imprisonment for six years, 11 months and eight days with a non-parole period of four years, four months and eight days. The sentence for each instance of offending was dealt with separately. For the 2015 offending the appellant was sentenced to two years, one month and 13 days with a non-parole period of one year, one month and 12 days. For the 2019 offending the 13 R v Glennon (1992) 106 ALR 177, 194. 14 R v Riccardi (2017) 128 SASR 571 at [119]. 15 R v Riccardi (2017) 128 SASR 571 at [120]. -- 8 of 15 -- [2023] SASCA 17 The Court 7 appellant was sentenced to four years, nine months and 25 days with a non-parole period of three years, two months and 26 days. The final non-parole period was arrived at by adding together the non-parole periods for the 2015 and 2019 offending. The appellant complains this is an error. Appeal grounds 36 The appellant appeals against sentence on the ground of manifest excess. The particulars are: 1. A manifestly excessive starting point with respect to the offence of threaten to cause harm in the 2015 offending. 2. With respect to the 2019 offending started at a manifestly excessive point with respect to both offences. 3. Erred in her approach to the issue of concurrency between the 2015 and 2019 offending. 4. Erred in finding that the overall sentence was proportionate and did not require reduction on account of the principle of totality. 5. Erred in finding that the 2015 offence “…is now antecedent offending that becomes relevant to the sentencing process for the 2019 offending and must be taken into account that this is the second occasion where you have been found guilty of offending when acting aggressively” when the appellant had not been convicted of the 2015 offending at the time of the 2019 offending. 7. The Learned Trial Judge erred in her approach to the setting of a non-parole period in that: a. The final non-parole period did not take into account the purpose of setting a, or the proportion of, the non-parole period to the overall sentence. b. Failed to comply with section 47(1)(b) of the Sentencing Act (2017) (SA) in that her Honour’s duty with respect to the setting of the second sentence was to extend the non-parole period which she had set with respect to the first sentence. 37 Ground 6 was withdrawn due to a report of the sentencing judge that confirmed that the appellant was sentenced for the 2019 offending on the basis that the victim was dragged 4 to 5 metres rather than 45 metres. 38 Permission to hear this ground is required. The respondent consented to the extension of time. -- 9 of 15 -- [2023] SASCA 17 The Court 8 Legal principles 39 The House v The King principles apply to an appellate review of a sentencing decision.16 The Court in Pateras v The Queen set out the applicable legal principles as follows:17 A challenge to a sentencing judge’s discretionary decision can only succeed if the judge: 1. Made an error of legal principle; 2. Made a material error of fact; 3. Took into account some irrelevant matter; 4. Failed to take into account, or gave insufficient weight to some [exceptional] relevant matter; or 5. Arrived at a result so unreasonable or unjust so as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. Members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted to a failure to properly exercise the discretion actually entrusted to the sentencing court. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust. 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. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. 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. 40 We first deal with Ground 7 as amended. Ground 7 41 The sentencing judge imposed a non-parole period of one year, one month and 12 days for the 2015 offending and three years, two months and 26 days for the 2019 offending. The total non-parole period imposed was four years, four months and eight days. The issue before the Court is whether the total non-parole period imposed was lawful. Distilled, this bears on the sentencing judge’s approach with regard to the lawful nature of a non-parole period as well as the 16 (1936) 55 CLR 499. 17 Pateras v The Queen [2021] SASCA 107 at [15]-[17]. -- 10 of 15 -- [2023] SASCA 17 The Court 9 requirements of review and extension if there is an existing non-parole period as set out in s 47(1)(b) of the Sentencing Act (2017) (SA) (‘Sentencing Act’). 42 As the appellant is to serve a cumulative sentence, the non-parole period is not to be imposed in respect of the individual sentences, rather, one non-parole period is to be imposed.18 The imposition of a non-parole period involves a consideration of the combined effect of the sentence. The purpose of fixing a non- parole period is to determine the optimum time when the appellant will respond to parole and take advantage of the opportunity to rehabilitate after serving the minimum period necessary to meet the punitive and protective purposes of the sentence.19 Notwithstanding that the fixing of a non-parole period is informed largely by the same considerations as that of a head sentence, it is a different discretionary exercise.20 43 If there is an existing non-parole period, s 47(1)(b) of the Sentencing Act requires the sentencing judge to review that period and extend it if the court thinks fit. Section 47(1)(b) of the Sentencing Act reads as follows: 47—Duty of court to fix or extend non-parole periods (1) Subject to this section, when a court, on convicting a person of an offence, sentences the person to imprisonment, the court must— (b) if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); 44 This section is applicable as, while unusual, it was open for the sentencing judge to first impose a non-parole period for the 2015 offending and then review that period and extend it if considered fit to do so with regard to the sentence for the 2019 offending. 45 The respondent submitted that the total non-parole period imposed was lawful. Having determined the sentence and total non-parole period, the sentencing judge must have then considered totality and proportionality, concluding that the sentence was proportionate. That is, the sentencing judge exercised her discretion when imposing the total non-parole period. We do not accept this submission. 46 The sentencing judge dealt with the sentence for each instance of offending separately. The sentencing judge used arithmetic to arrive at the total non-parole period of four years, four months and eight days. This approach, in effect, imposed two non-parole periods to be served cumulatively. 18 R v Shepperbottom (2001) 121 A Crim R 69 at [49]. 19 R v Roberts [2016] SASCFC 41 at [21]. 20 R v Roberts [2016] SASCFC 41 at [21]. -- 11 of 15 -- [2023] SASCA 17 The Court 10 47 The sentencing judge did not engage in a discussion, ordinarily expected, that demonstrates that she exercised her discretion when determining the total non- parole period. Similarly, there was no review or decision to extend. The fleeting comments regarding totality, proportionality and that the sentence and non-parole period are not at a level to be considered crushing cannot be said to be indicative of the exercise of discretion that is required. The failure to exercise the discretion, or abide by s 47(1)(b) of the Sentencing Act, amounts to a process error of the kind recognised in House v The King. 48 We grant permission to hear this ground of appeal and allow the appeal against sentence. Given our findings, it is unnecessary to consider the remaining grounds. We turn to resentence the appellant. Resentence Previous sentence 49 The 2015 offending first came before a jury in August 2018 who delivered a guilty verdict. The trial only concerned aggravated assault causing harm, contrary to s 20(4) of the CLCA, for which the sentencing judge imposed a term of imprisonment of two years with a non-parole period of 13 months. The appellant spent nine months on home detention bail and served 13 months and 18 days in prison. An appeal was granted and in April 2019 the Full Court ordered a retrial. 50 At the retrial, which has been referred to in these reasons as the first trial, the prosecution laid a new information containing the additional charge of aggravated threatening to cause harm, contrary to s 19(2) of the CLCA. 51 The sentencing judge acknowledged that for the 2015 offending, unlike the initial sentence, she was to impose a sentence for two offences. The 2015 offending was characterised as very serious. General deterrence was emphasised as the offence was against a police officer acting in the course of his duties. Personal deterrence also played a role given the opinion of Dr White. 52 For the offence of aggravated assault causing harm, the appellant was sentenced to 20 months imprisonment. For the offence of aggravated threatening to cause harm the appellant was sentenced to three years and four months imprisonment. These offences were part of the same series of events and the sentence was ordered to be served partly concurrently with the resultant head sentence being three years and six months. A non-parole period of two years and six months was fixed. 53 The sentencing judge subtracted 13 months and 18 days for the time already served in prison and a further three months for the time spent on home detention bail, namely, nine months and two weeks. The final sentence imposed for the 2015 offending was imprisonment for two years, one month and 13 days with a non- parole period of one year, one month and 12 days. -- 12 of 15 -- [2023] SASCA 17 The Court 11 54 The 2019 offending comprised of recklessly causing serious harm, contrary to s 23(3) of the CLCA and leaving an accident scene after causing harm by careless driving, contrary to s 19AB(2) of the CLCA. The sentencing judge noted the maximum penalty for both offences is 15 years. Again, the appellant showed no remorse, blaming the victim. The sentencing judge considered the 2015 offending to be antecedent and relevant to the sentence for the 2019 offending, noting the common theme of aggression. For the offence of recklessly causing serious harm, the appellant was sentenced to imprisonment for four years and six months. For leaving the scene of an accident, the appellant was sentenced to imprisonment for three years. The two offences were part of one series of events and the sentencing judge allowed ‘some concurrency’ and imposed a head sentence of five years and three months imprisonment. A non-parole period of three years and nine months was fixed. 55 The sentencing judge subtracted 158 days for time spent in custody immediately following the offence and after bail was revoked. The final sentence was imprisonment for four years, nine months and 25 days with a non-parole period of three years, two months and 26 days and a disqualification from holding, or applying for, a driver’s licence for 10 years. 56 For the 2019 offending, counsel for the appellant submitted that the sentence should be partially suspended pursuant to s 96 of the Sentencing Act. No good reason was found to suspend any part of the sentence. 57 The total term of imprisonment to be served was six years, 11 months and eight days, with a non-parole period of four years, four months and eight days. The sentencing judge considered totality to ensure proportionality. Legal principles 58 The High Court in Kentwell v The Queen said that where an appellate court identifies an error of the kind recognised in House v The King, it should independently exercise the sentencing discretion.21 Where this Court concludes that a lesser sentence is appropriate having regard to the offender and offence, a lesser sentence should be imposed. If it is determined that the same or a greater sentence is to be imposed, this Court is not required to resentence.22 Resentence 59 We will not repeat the circumstances of the offending or the appellant’s personal circumstances. We have had regard to the sentencing materials that were before the sentencing judge. 21 [2014] HCA 37 at [43]; (2014) 252 CLR 601, 618. 22 Kentwell v The Queen [2014] HCA 37 at [43]; (2014) 252 CLR 601, 618; Stock v The Queen [2021] SASCA 116 at [59]. -- 13 of 15 -- [2023] SASCA 17 The Court 12 60 The 2015 offending against Jelfs in the course of his duties as a police officer is very serious. General deterrence is a particularly important consideration for offences against police officers.23 Imprisonment is the only appropriate sentence to achieve general and personal deterrence. There are limited mitigating circumstances. 61 For the offence of aggravated assault causing harm, contrary to s 20(4) of the CLCA, the appellant is sentenced to 20 months imprisonment. For the offence of aggravated threatening harm, contrary to s 19(2) of the CLCA, the appellant is sentenced to two years and six months imprisonment. We make these sentences partially concurrent. The appellant is sentenced to three years imprisonment. We impose a non-parole period of two years. 62 For the 2015 offending, the appellant served 13 months and 18 days in prison and nine months and two weeks on home detention. It is not appropriate to backdate the sentence. We allow 17 months to account for time in custody and time on home detention bail. The sentence becomes imprisonment for one year and seven months with a non-parole period of seven months. 63 The 2019 offending was again very serious, involving a reckless act that caused life threatening injuries. This offending occurred while the appellant was on bail for the 2015 offending pending the retrial. Despite his recklessness, the appellant called emergency services. However, he left the scene before the ambulance arrived. There are few other mitigating circumstances. 64 For recklessly causing serious harm, contrary to s 23(3) of the CLCA, the appellant is sentenced to four years imprisonment. For leaving the scene of an accident after causing harm by careless driving, contrary to s 19AB(2) of the CLCA, the appellant is sentenced to two years imprisonment. We make the sentences partially concurrent. The appellant is sentenced to five years imprisonment. 65 The appellant spent 158 days in custody prior to sentencing. We reduce this sentence by that amount. The final sentence is four years, six months and 25 days. 66 The 2015 and 2019 offending were separate incursions into crime. There is no reason to impose a concurrent, or partially concurrent, sentence. The sentence for the 2019 offending is to be served cumulatively at the expiration of the sentence for the 2015 offending. The final sentence is six years, one month and 25 days imprisonment. 67 Pursuant to s 47(1)(b) of the Sentencing Act we are required to review the current non-parole period of seven months and extend it as we see fit. In setting a non-parole period proportionate to the final sentence, we have regard to the 158 23 R v McNamara (2009) 105 SASR 38 at [7], [31]; R v Wright [2019] SASCFC 128 at [72]. -- 14 of 15 -- [2023] SASCA 17 The Court 13 days served in custody for the 2019 offending. We set a non-parole period of three years and two months. No adjustment is required for the totality principle. 68 The appellant is sentenced to six years, one month and 25 days imprisonment with a non-parole period of three years and two months. This sentence is backdated to commence on 25 March 2022. The appellant is disqualified from holding, or applying for, a driver’s licence for 10 years. Orders 69 The Court orders as follows: 1. We grant an extension of time to appeal against conviction. 2. The appeal against conviction is dismissed. 3. Permission is granted to the appellant to amend the Grounds of Appeal. 4. Permission to appeal against sentence is granted and the appeal is allowed on amended Ground 7. 5. The sentence imposed on 25 March 2022 in the District Court is set aside. 6. The appellant is sentenced to imprisonment for six years, one month and 25 days with a non-parole period of three years and two months backdated to commence on 25 March 2022. 7. The appellant is disqualified from holding, or applying for, a driver’s licence for 10 years. -- 15 of 15 --