AKUR ALEER DENG v THE KING [2023] SASCA 45

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE STRETTON) DCCRM-19-1332 Appellant: AKUR ALEER DENG Counsel: MR J WILSON - Solicitor: SHAW & HENDERSON Respondent: THE KING Counsel: MR C EDGE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 23/11/2022 File No/s: SCCRM-22-243 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. DENG v THE KING (No 2) [2023] SASCA 45 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby) 5 May 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS The appellant was convicted of causing serious harm, being reckless as to whether she caused serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty was imprisonment for 15 years. The sentencing judge imposed a head sentence of five years’ imprisonment and fixed a non-parole period of two years. After bail was revoked, the appellant was in custody for 22 days until she was granted bail pending appeal. The appellant’s appeal against conviction was dismissed, but her appeal against sentence was both conceded and allowed on the basis that the sentencing judge failed to consider an available sentencing option, being partial suspension pursuant to ss 96(3)(b) and 96(5) of the Sentencing Act 2017 (SA), Deng v The King [2023] SASCA 35. After receiving further evidence and submissions from the parties the Court considered resentence where the available sentencing options comprised immediate incarceration, partial suspension and home detention. -- 1 of 17 -- Held: (the Court) setting aside the District Court sentence, and sentencing the appellant to imprisonment for three years, five months and eight days, with a non-parole period fixed at 15 months and eight days: 1. The sentencing court need not determine that there is not “good reason” to suspend under s 96 before determining that “the sentence should not be suspended” under s 71(1)(b) of the Sentencing Act 2017 (SA). 2. Whilst the seriousness of the appellant’s offending might not ordinarily warrant the leniency implicit in an order for home detention, the unusual and peculiar circumstances of this case warranted that sentencing option. Criminal Law Consolidation Act 1935 (SA) s 23; Sentencing Act 2017 (SA) ss 71, 96, referred to. Adams (a pseudonym) v The Queen [2022] SASCA 47; Adeseolu v The King [2022] SASCA 113; Betts v The Queen (2016) 258 CLR 420; BRK v Police [2020] SASC 116; Deng v The King [2023] SASCA 35; Kentwell v The Queen (2014) 252 CLR 601; R v Chalmers (2012) 115 SASR 150; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Galffy [2009] SASC 261; R v Harkin (2011) 109 SASR 334; R v Hosking (2017) 128 SASR 37; Rendic v The Queen [2021] SASCA 23, considered. -- 2 of 17 -- DENG v THE KING (No 2) [2023] SASCA 45 Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA THE COURT: Introduction 1 Following a trial by judge alone the appellant was convicted of causing serious harm to Ms Achol Gai on 15 January 2019 at Broadview in South Australia, being reckless as to whether she caused serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty was imprisonment for 15 years. 2 The sentencing judge imposed a head sentence of five years’ imprisonment and fixed a non-parole period of two years. After bail was revoked, the appellant was in custody for 22 days from 8 June until Lovell JA granted bail pending appeal on 30 June 2022. 3 On 6 April 2023 this Court dismissed the appellant’s appeal against conviction but allowed the appeal against sentence.1 The appeal against sentence was both conceded and allowed on the basis that the sentencing judge failed to consider an available sentencing option, being partial suspension pursuant to ss 96(3)(b) and 96(5) of the Sentencing Act 2017 (SA) (the Sentencing Act). 4 The application of these provisions was overlooked by the parties and, in consequence, by the sentencing court. The parties only addressed the sentencing judge on whether the appellant’s sentence could be wholly suspended even though that option was precluded because the offending comprised a “prescribed designated offence” and the sentence was one of imprisonment for two years or more, see s 96(3)(b) of the Sentencing Act.2 5 In consequence, the available sentencing options comprise immediate incarceration, partial suspension and home detention. The Court sought further submissions on re-sentence from the parties. These were provided at a hearing on 12 April 2023. In order to explain these reasons it will be necessary to revisit some of the matters addressed in this Court’s earlier reasons. The circumstances of the offending 6 At the time of sentence, the appellant was aged 34 years having been born in an Ethiopian refugee camp in 1988 before moving to Kenya in 1992. After migrating to Australia in October 2002 and moving to South Australia in 2005, the appellant met Mr Jur and commenced a relationship with him, dropping out of 1 Deng v The King [2023] SASCA 35 (Livesey P, Doyle and Bleby JJA). 2 An offence under s 23 of the Criminal Law Consolidation Act 1935 (SA) is a “prescribed designated offence” pursuant to ss 71(5) and 96(9) of the Sentencing Act 2017 (SA). -- 3 of 17 -- [2023] SASCA 45 The Court 2 Year 12 in order to do so. Although there was a cultural marriage ceremony, and the appellant regarded Mr Jur as her husband, they were never legally married. 7 The appellant and Mr Jur had four children between 2007 and 2015. During 2015, their relationship deteriorated. During that year, Mr Jur moved to Melbourne. Although he regarded the relationship as over, the appellant followed him to Melbourne with their four children. The appellant and Mr Jur shared the care of their children although they lived separately and apart. 8 During 2016, Mr Jur commenced a relationship with Ms Gai and she became pregnant. By 2018, Mr Jur and Ms Gai had two children. During the same year, the appellant and Mr Jur had their fifth child. 9 There was animosity between the appellant and Ms Gai. The sentencing judge found that the appellant called Ms Gai and sent her threatening text messages. 10 A few days before the offending on 15 February 2019, Mr Jur travelled from Melbourne to visit Ms Gai who was living in Adelaide. He did so because Ms Gai told him that one of their children was sick. At that time, the appellant was being assisted with her two younger children by Mr Jur in Melbourne. Her three older children were living with family in Brisbane. 11 The sentencing judge found that the appellant made it difficult for Mr Jur to travel to Adelaide and, eventually, he was required to take the interstate bus to Adelaide. 12 The appellant telephoned Mr Jur and said that she was going to bring their two children over to Adelaide to stay with him. The sentencing judge found that this formed part of an ongoing argument in which the appellant intended to disrupt and interfere with Mr Jur’s Adelaide trip. 13 During the early hours of 15 January 2019, Mr Jur and Ms Gai were staying upstairs at the home of Mr Jur’s brother. They awoke to the appellant’s loud banging on the front door. Soon after, Mr Jur’s brother arrived home from night shift. There was a heated discussion about whether Mr Jur and Ms Gai were inside the house and this descended into an argument between the appellant and Mr Jur’s brother. The appellant drove off but returned shortly afterwards. 14 Eventually, Mr Jur came outside of the house and told the appellant that he would drive the appellant and their two children to her sister’s home. Although the appellant agreed, she walked past Mr Jur and his brother, saying that she was going to use the toilet inside the house. 15 The front security door was open and the appellant commenced banging and rattling the glass on the front door. This scared Ms Gai and she came to the door, holding a frying pan. Ms Gai put down the frying pan and opened the front door. The appellant then pushed the door open and leapt at Ms Gai, forcefully biting -- 4 of 17 -- [2023] SASCA 45 The Court 3 down on her lower left lip, violently tugging and chewing at it. Ms Gai punched the appellant and the women soon fell to the ground. Ms Gai’s head hit the wall, denting it and, as the appellant bent over Ms Gai, she spat the severed lip out onto the floor. 16 Mr Jur pulled the appellant away from Ms Gai. The appellant got back into her car and drove off. The appellant went to a police station and reported that Ms Gai had assaulted her. 17 Ms Gai was seriously injured and, despite surgery, her lower left lip could not be reattached. For several weeks Ms Gai could not chew or eat hard foods and she had difficulty with talking and pronunciation. It took two years for the physical wound to heal. Ms Gai’s evidence to the Court was that her appearance had been permanently changed and she experienced ongoing distress at having been disfigured for life. Her lips are no longer symmetrical. Ms Gai’s injury has caused difficulties with her self-confidence and she still awaits remedial surgery. 18 The sentencing judge found that the appellant harboured resentment, anger and hostility towards Ms Gai. He described the appellant’s conduct as sudden, violent and unprovoked. The sentencing judge found also that the appellant intended to disfigure Ms Gai but was reckless as to whether she caused serious harm. He found that it was a serious example of this kind of offending by reason of the appellant’s motivation, premeditation and the innocence of the victim, combined with the cruel and lifelong effects of the attack upon her. The circumstances of the offender 19 The appellant has no criminal record and a number of references were provided to the sentencing judge which attested to her being well regarded within her family and community, particularly her church community. The appellant was described as a woman dedicated to her family and work. 20 The appellant continues to provide financial support to her sister and her sister’s children in Uganda, as well as to her mother. 21 The appellant is the third daughter of eight children. Although the sentencing judge was given a brief outline of the appellant’s experiences in Africa, this Court has been provided with a great deal more information. 22 In preparation for the sentence appeal and the possibility of re-sentence, the appellant obtained further information and reports which have been provided to the Court: 1. a letter from Debbie Wakefield dated 14 December 2022; 2. a letter from Robert Aduer dated 16 December 2022; 3. a psychological report of Dr Benjamin Stewart dated 20 December 2022; -- 5 of 17 -- [2023] SASCA 45 The Court 4 4. a letter of Dr William Abur dated 22 December 2022; and 5. a report of Dr Edward Oludare dated 9 January 2023. 23 The prosecution accepted that this Court should receive this evidence and take it into account for the purposes of exercising the sentencing discretion afresh on re-sentence.3 Much of what follows was set out in the history obtained by Dr Stewart. 24 The appellant’s family fled to an Ethiopian refugee camp following the outbreak of civil war in Sudan during the 1980s. The appellant had little recall of her life in Ethiopia until she was aged around five years when further conflict broke out in Ethiopia. Armed men started shooting civilians and the appellant witnessed numerous killings, including the deaths of her brother and uncle. 25 Eventually the appellant escaped with her aunt and family members on foot, making their way to a Kenyan refugee camp. The appellant became separated from her mother and siblings. During her escape she was warned “don’t look back, keep going”. The appellant did not learn for another six years that her mother and siblings had survived. She learned that her father had died during the conflict and, during the course of her examination with Dr Stewart, she became tearful when describing how she had no memory of her father. 26 The walk to the Kenyan refugee camp was long and arduous. The appellant had no shoes. When they arrived, UN representatives provided blankets, clothes and food. No housing was available. Initially, the appellant and her aunt made a house out of grass. It took some time before they could build better accommodation. There was no access to electricity or running water. The toilet comprised an open pit near their home. 27 The appellant’s recollection is that life remained dangerous in and around the refugee compound. There were regular instances of robbings and killings, as well as an incident in which people broke into the house of the appellant and her aunt to rob them. 28 Unsurprisingly, the appellant described not having had a childhood and having to grow up quickly. Eventually, her aunt became sick during the mid-1990s and died due to the absence of proper nutrition and medication. At that stage the appellant was aged eight and lived with various family members who she described as mistreating her. She was subjected to regular physical beatings. 29 The domestic chores given to the appellant interfered with her schooling. When the appellant attended school, she was beaten. She stopped schooling at around the age of nine years. 3 Kentwell v The Queen (2014) 252 CLR 601; Betts v The Queen (2016) 258 CLR 420. -- 6 of 17 -- [2023] SASCA 45 The Court 5 30 Eventually, the appellant’s life improved and a cousin assisted her to obtain a visa to come to Australia during 2002. Initially the appellant lived in Brisbane. The appellant was able to restore contact with her mother and brother as well as attend school regularly. Another brother and her sister came to Australia. The appellant’s mother remains in a Ugandan refugee camp but is otherwise safe and well. 31 As earlier mentioned, the appellant left school in Year 12 to commence her relationship with Mr Jur in Adelaide during 2005. Their son Bior was born in 2007, Abiar was born in 2011, Kuie was born in 2014, Deng in 2015 and Aleer was born in 2018. 32 By the time of her psychological examination late last year, the appellant had determined to end her relationship with Mr Jur, recognising that although she had believed the relationship was positive, in retrospect Mr Jur was both deceptive and unfaithful to her. The appellant now has no interest in commencing any new relationship with another man. She presently resides in Melbourne with her brother and her five children. 33 The appellant has enjoyed regular employment, and initially commenced working at age 14 years. The appellant has worked in seasonal work, picking onions during her school holidays as well as babysitting. She studied for a Certificate III in Aged Care and from 2011 until 2013 she worked in aged care. She then worked in a family day care office until 2015 and, after her fourth child, she worked as a hairdresser from her home, as well as a family day care educator. 34 During 2018, the appellant worked night shift in a bread factory and managed to obtain a Certificate IV in Child and Family Intervention. During 2019 she also obtained a Certificate IV in Disability and worked in child protection as a support worker until she was incarcerated for 22 days following sentence on 14 June 2022. 35 Although the appellant had believed she may have an undiagnosed mental illness, it was not until her examination with Dr Stewart that she was formally diagnosed with a post-traumatic stress disorder for which she requires treatment. The diagnosis was made in part on the basis of the appellant’s symptoms of anxiety and distress, together with her history of flashbacks and nightmares triggered by movies involving war or conversations about her past experiences. Occasionally, the appellant experienced dissociative episodes. She reported being easily startled by loud noises and, during her first New Year’s Eve in Australia, she was traumatised by fireworks and hid under her bed. 36 The appellant described increased symptoms during times of stress, including following the birth of her children and the breakdown in her relationship with Mr Jur. During her 22 days of incarceration, the appellant reported a very significant exacerbation in mental health symptoms. She became depressed and lost significant weight. The appellant experienced panic attacks associated with -- 7 of 17 -- [2023] SASCA 45 The Court 6 heart palpitations, dizziness and shakiness. Since release from prison she has felt unable to leave her house for fear that her symptoms may be noticed by others. 37 The appellant explained to Dr Stewart that mental illness was regarded with scepticism and derision by some in her community. The appellant said that she was reluctant to explain the extent of her symptoms, fearing the reaction it may provoke from others within the expatriate African community. Although the appellant described close relationships and support from family and friends, she nonetheless found it difficult to seek support for her mental health issues. She described regular churchgoing in Australia which was interrupted by the pandemic. 38 The Court has also been provided with medical evidence from Dr Oludare regarding the effect of imprisonment on the appellant’s children. For example, Bior, currently 15 years, has described anxiety and poor sleep. He was unable to cope whilst his mother was incarcerated and found school difficult. He stopped attending school. On a mental state examination, Bior was found to be anxious and depressed, and he was diagnosed with an adjustment disorder with anxiety and depression. He has been referred to a psychologist for cognitive behavioural therapy and psychotherapy. Dr Oludare has expressed the opinion that Bior will be unable to cope if his mother is again incarcerated. 39 Dr Oludare described the results of his examination of Abiar, who is 11 years, which included a history of excessive crying, poor sleep, abdominal pain and anxiety. She too has been referred for cognitive behavioural therapy and psychotherapy. Dr Oludare described his concern about the impact of the appellant’s incarceration on Abiar’s mental health. He attributes Abiar’s abdominal pain to anxiety and family stress. Dr Oludare expressed the opinion that the appellant’s incarceration would undermine Abiar’s mental health as a whole; approaching her teenage years she will be at risk of chronic mental health as well as increased risk of contemplating suicide. 40 Dr Oludare’s examination of Kuie, currently eight years, revealed a history of excessive crying, anxiety and poor sleep. She was found to be anxious and depressed and a diagnosis of an adjustment disorder with anxiety and depression secondary to the stressor of her mother’s incarceration was made. She too was referred to a psychologist for cognitive behavioural therapy. Dr Oludare expressed the opinion that were Kuie to be again separated from her mother by reason of her mother’s incarceration, she is at increased risk of developing chronic mental health issues. 41 Deng, currently seven years, presented with a history of excessive crying, poor sleep and anxiety. On examination he looked depressed and he was diagnosed with an adjustment disorder and also referred for cognitive behavioural therapy. The mental health risk for Deng was assessed to be similar to that of his older sister, Kuie. -- 8 of 17 -- [2023] SASCA 45 The Court 7 42 A very similar diagnosis was made concerning Aleer, currently five years. He has exhibited excessive clinging to his mother since her release and examination revealed anxiety symptoms. He has been referred for cognitive behavioural therapy. Dr Oludare expressed the opinion that the long overall mental and developmental outlook for the appellant’s children was poor should she be incarcerated. 43 The Court was provided with correspondence from a social worker, Mr Abur, who has accreditation as a mental health and social worker. He has worked closely with the appellant and her children before and after her imprisonment. His letter catalogues the symptoms experienced by the children in the absence of their mother, as well as revealing considerable antipathy towards their father. A number of the children expressed concern about whether their mother would survive prison as well as their refusal to attend school whilst their mother was in prison. They expressed a range of extreme opinions, such as their view that they were like orphans because their father had left them, and their mother was in prison. 44 The intensive attention given by Mr Abur during the period of the appellant’s imprisonment abated once she was bailed because she quickly bonded with her children, stabilising their feelings and addressing their fears. Mr Abur expressed the opinion that imprisonment of the appellant would harm the children psychologically and emotionally. 45 Mr Aduer, the Community Liaison Coordinator at Bior’s secondary college, attested to the “tremendous impacts and barriers” presented to Bior’s learning and welfare by his mother’s incarceration. Mr Aduer described the appellant as Bior’s “primary supporter” maintaining his positive school engagement. In her absence, it was observed that Bior exhibited problems with low self-worth and with his overall sense of wellbeing in school engagement. These rapidly improved after the appellant was given bail. 46 Ms Wakefield, a childcare worker, described the “huge impact” the incarceration of the appellant had on Aleer: He went from being a confident, happy little boy to withdrawn and emotional. … He did not want to participate and engage with his peers … and it was difficult for educators to encourage him to do so. … 47 It was apparent that Aleer spent large portions of the day sleeping, which was most unlike his ordinary routine. The approach of the sentencing judge 48 The findings made regarding the appellant’s offending have already been addressed. Whilst it is clear that the sentencing judge recognised that the appellant’s imprisonment would represent a significant burden on her five children, as well as on the appellant, the full implications of the appellant’s mental illness and the risks confronting her five children were not addressed. -- 9 of 17 -- [2023] SASCA 45 The Court 8 49 Nonetheless, the sentencing judge took this hardship into account by fixing a non-parole period that was “at the very lowest end of the possible scale”, being two years or 40 per cent of the head sentence. 50 Whilst the sentencing judge considered suspension, albeit complete suspension rather than partial suspension, that was rejected on the basis that it would not represent adequate punishment, nor would it reflect adequate personal or general deterrence and the serious harm caused recklessly. 51 On the question of home detention, the sentencing judge assumed that the first stage of the two-stage test was satisfied but that the premeditated nature of the offending and the serious harm recklessly caused meant that home detention would not represent adequate punishment. The contentions of the parties on re-sentence 52 The appellant’s case was that this Court should order home detention with partial suspension as an alternative. The appellant submitted, relying upon the report of Dr Stewart, that the following matters may be concluded: 1. the appellant lacks many of the characteristics associated with a risk of generalised offending; 2. the appellant does not possess antisocial attitudes or a criminal personality style; 3. the appellant has no prior offending history and does not associate with antisocial peers; 4. the appellant does not have a history of substance abuse; 5. the appellant has a long history of engagement in education, employment and pro-social interests; 6. the appellant has a pro-social support network of family, friends and community members; and 7. the appellant lacks many of the risk factors specific to violent offending. 53 During submissions it was made clear that were the appellant to be imprisoned it would be necessary for her children to move from Melbourne to South Australia because the appellant’s brother can no longer care for them. 54 The appellant’s sister resides in the northern suburbs with her nine children in a six-bedroom home. The appellant’s children can be accommodated in that house. It is that home which has been identified by the appellant and accepted as premises suitable for home detention. -- 10 of 17 -- [2023] SASCA 45 The Court 9 55 Whilst the prosecution contended for immediate incarceration, it was not submitted that home detention or partial suspension were inappropriate in the circumstances of this case, particularly in light of the further evidence which has been produced for the purposes of re-sentence. 56 The Court’s attention was invited to a number of cases. It is appropriate to mention them briefly. 57 In R v Galffy the DPP unsuccessfully sought permission to appeal against a suspended sentence of two years, five months and three weeks’ imprisonment, with an 18-month non-parole period, for an offence of aggravated recklessly causing serious harm in a case of child abuse. The respondent had kicked his three and half year-old son, causing life-threatening injuries.4 58 In R v Harkin the DPP was granted permission to appeal and the Court of Criminal Appeal imposed a head sentence of three years and a non-parole period of 18 months (which was not suspended) for a father where he and his son pleaded guilty to aggravated causing serious harm with intent to cause serious harm, involving punching and kicking a victim’s head and body.5 59 In R v Chalmers the Court of Criminal Appeal considered two sentences for charges of aggravated causing harm with intent to cause harm. Chalmers was sentenced to three years and six months’ imprisonment with a non-parole period of 18 months’ imprisonment, whilst Bekirovski was sentenced to three years’ imprisonment with a non-parole period of 12 months’ imprisonment. 60 The offending was described as an open, brazen and vicious attack involving punching and stomping of the victim, who suffered a subdural haemorrhage and was admitted to hospital for a week. The victim was then placed in the care of the Hampstead Centre for about 18 months. His hearing acuity was permanently adversely affected and he suffered a speech impediment together with depression and associated symptoms.6 The Court was persuaded that the appellants’ good character, reasonable prospects of rehabilitation and the five months they had spent in custody warranted the suspension of their sentences despite the violence of their conduct and their lack of contrition.7 61 In Rendic v The Queen the Court of Appeal dismissed an appeal against a sentence of four years’ imprisonment with a non-parole period of two years and three months for aggravated causing serious harm with intent to cause serious harm, where the appellant had struck the victim to the head with a tire iron, causing a fractured skull and bleeding of the brain.8 4 R v Galffy [2009] SASC 261. 5 R v Harkin (2011) 109 SASR 334. 6 R v Chalmers (2012) 115 SASR 150, [7] (Kourakis CJ). 7 R v Chalmers (2012) 115 SASR 150, [34]-[37] (Kourakis CJ), [89]-[91] (Sulan J, with whom Blue J agreed). 8 Rendic v The Queen (2021) 138 SASR 214. -- 11 of 17 -- [2023] SASCA 45 The Court 10 62 As can be seen, most of these cases were illustrations of intentional, rather than reckless, violent offending and so are of little utility. Re-sentencing the appellant 63 Having regard to the circumstances of the offending and the offender, it is clear that the relevant sentencing considerations in this case include deterrence, denunciation and punishment. 64 Nonetheless as Bleby J explained in R v Galffy, in a case of recklessly causing serious harm, general deterrence is of less importance than it might be in a case of intentionally causing serious harm.9 65 The submissions made about the appellant’s criminogenic profile based on the conclusions of Dr Stewart must be accepted. There is a very low prospect of re-offending. Given the evidence from Dr Stewart, and notwithstanding the absence of contrition and remorse, this is not a case in which personal deterrence weighs heavily. The appellant’s favourable personal circumstances, and due recognition of the hardship which will be caused to the appellant and her children by reason of incarceration, which may be described as “out of the ordinary or extreme”, warrant some leniency in sentence.10 66 The appellant should be sentenced to a term of imprisonment of three years and six months. 67 A lower than usual non-parole period is appropriate: a period of 16 months should be fixed, being 40 per cent of the head sentence to be imposed. 68 After reduction for time spent in custody, the sentence will be three years, five months and eight days, and the non-parole period will be fixed at 15 months and eight days. 69 The parties were agreed that it is appropriate for this Court to survey and consider the appropriate and available sentencing options which here include home detention under s 71 and partial suspension under s 96 of the Sentencing Act.11 70 Neither party suggested that it was necessary to wholly reject partial suspension before considering the possibility of home detention. In BRK v Police it was observed that:12 The sentencing option of partial suspension … does not neatly fit into the “sentencing hierarchy” discussed in Dell and Hosking. In a sense this option “straddles” home detention because it encompasses elements that are at once more onerous and less onerous than home detention… 9 R v Galffy [2009] SASC 261, [35] (Bleby J, with whom Doyle CJ agreed). 10 Adams (a pseudonym) v The Queen [2022] SASCA 47 (Livesey P, Doyle and Bleby JJA). 11 BRK v Police [2020] SASC 116, [81] (Livesey J). 12 BRK v Police [2020] SASC 116, [83]-[86] (Livesey J). -- 12 of 17 -- [2023] SASCA 45 The Court 11 Nothing in s 71 is otherwise directed at restricting the broad discretion reposed in a sentencing judge to consider, and ultimately to implement, the sentencing package which best meets the objectives and requirements of the Sentencing Act and the circumstances of the offender and the offending. (citations omitted) 71 In Rendic v The Queen, Bleby JA agreed with the submission that these observations described an approach of identifying the inappropriate and appropriate sentencing considerations as part of the instinctive synthesis exercise.13 Similarly, in Adeseolu v The King, the Court of Appeal accepted that it may be appropriate to give consideration to home detention before reaching a conclusion about suspension of sentence. Before warning that it was not necessary for a sentencing judge to embark upon a detailed consideration of home detention in every case, the Court explained:14 On the facts of [BRK v Police], where home detention was an available sentencing option, and was central to the sentencing submissions made on behalf of the defendant, his Honour held that the Magistrate was required to have regard to it when surveying the array of sentencing options at her disposal,15 and erred in failing to give any explicit consideration to the possibility of home detention.16 At the same time, his Honour was careful to explain that even in those cases where it is necessary for the sentencing judge to address the possibility of home detention, the sentencing judge’s reasons for rejecting that option need not be lengthy.17 We agree generally with this approach. We accept that the court’s discretion to make an order for home detention is, by reason of s 71(1)(b) of the Sentencing Act, not enlivened unless it considers that there is not good reason to wholly or partially suspend the sentence of imprisonment. However, there will be cases where home detention is a realistic sentencing option, and the defendant submits that it is a more appropriate sentencing option than a partially suspended sentence, presumably on the basis that he or she regards it as a less onerous form of punishment than a partially suspended sentence (because it has, embedded within it, a period of time in prison). In those cases, the court should give at least some consideration to home detention in the course of determining the appropriate sentencing outcome. Put another way, in that type of case, a conclusion that partial suspension is the appropriate sentence necessarily entails a conclusion that home detention would be an inadequate, or at least less appropriate, sentencing option. Some consideration of that alternative sentencing option is thus required. (citations omitted) 72 Obviously enough, partial suspension must involve a portion of the sentence being served in prison. By reason of s 96(5)(a) of the Sentencing Act that period must be one-fifth of the non-parole period which is fixed. That element of the sentence would entail considerable hardship to the appellant and her children. That hardship will exceed the ordinary consequences of incarceration, particularly in circumstances where the appellant’s children appear to be without the support of 13 Rendic v The Queen [2021] 138 SASR 214, [45]-[47] (Bleby JA). 14 Adeseolu v The King [2022] SASCA 113, [64]-[65] (Doyle, Bleby and David JJA). 15 BRK v Police [2020] SASC 116 at [85] (Livesey J). 16 BRK v Police [2020] SASC 116 at [89]-[90] (Livesey J). 17 BRK v Police [2020] SASC 116 at [89] (Livesey J). -- 13 of 17 -- [2023] SASCA 45 The Court 12 their father. These considerations highlight the public interest in the welfare of the children,18 and point against partial suspension and in favour of home detention. 73 The sentencing court will consider whether to exercise the discretion to make a home detention order where it determines to impose a sentence of imprisonment and it considers that the sentence should not be suspended.19 74 In many cases suspension is ruled out because the sentencing court has determined that there is not “good reason” to suspend the sentence of imprisonment, or that partial suspension should not be ordered, particularly where the offending is too serious to warrant suspension. By contrast, this case demonstrates that the approach may be subtly different where the court is evaluating a submission that home detention is preferable to partial suspension. 75 Where the sentencing court is evaluating a submission that home detention is preferable to partial suspension it may not need to determine that there is not “good reason” to suspend within the meaning of s 96(1), or that there is necessarily any obstacle to partial suspension under s 96(5) of the Sentencing Act. Rather, the court may simply consider that “the sentence should not be suspended” under s 71(1)(b) of the Sentencing Act. 76 Having determined that the sentence should not be suspended, it is necessary to consider the requirements of s 71 of the Sentencing Act. 77 Section 71 of the Sentencing Act relevantly provides: 71—Home detention orders (1) Subject to this section, if— (a) a court has imposed a sentence of imprisonment on a defendant; and (b) the court considers that the sentence should not be suspended under Part 4 Division 2; and (c) the court considers that the defendant is a suitable person to serve the sentence on home detention, the court may order that the defendant serve the sentence on home detention (a home detention order). (2) The following provisions apply to a home detention order: 18 Adams (a Pseudonym) v The Queen [2022] SASCA 47, [33]-[36] (Livesey P, with whom Bleby JA agreed). 19 Sentencing Act 2017 (SA), s 71(1); R v Filipponi (2016) 126 SASR 464, [22] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed) and R v Dell (2016) 126 SASR 571, [43] (Doyle J, with whom Kelly and Parker JJ agreed). -- 14 of 17 -- [2023] SASCA 45 The Court 13 (a) a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice; (b) a home detention order must not be made if the defendant is being sentenced— (i) as an adult to a period of imprisonment with a non parole period of 2 years or more for a prescribed designated offence; or …; (c) a home detention order must not be made unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; (d) a home detention order must not be made if the home detention is to be served cumulatively on another term of imprisonment (other than a term of imprisonment to be served subject to a home detention order), or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; (e) a home detention order should not be made unless the court is satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer. (3) The court must take the following matters into consideration when determining whether to make a home detention order: (a) the impact that the home detention order is likely to have on— (i) any victim of the offence for which the defendant is being sentenced; and (ii) any spouse or domestic partner of the defendant; and (iii) any person residing at the residence at which the prisoner would, if released, be required to reside; (b) the pre sentence report (if any) ordered by the court; (c) any other matter the court thinks relevant. (4) ... (5) In this section— … prescribed designated offence means an offence under section 13 or 23 of the Criminal Law Consolidation Act 1935; … -- 15 of 17 -- [2023] SASCA 45 The Court 14 78 It has become customary to speak of a two-stage approach when determining whether to order home detention.20 The first stage involves a determination as to whether “the defendant is a suitable person to serve the sentence on home detention”, s 71(1)(c) of the Sentencing Act.21 There was no suggestion that the appellant was not a suitable person within the meaning of that provision. 79 The second stage involves determining whether it is appropriate to exercise the discretion to make an order that the sentence be served on home detention, s 71(1) of the Sentencing Act. When considering the exercise of discretion, the sentencing court must consider “the full range of sentencing considerations”,22 as well as the considerations mandated by s 71(3). It has often been observed that it is necessary to ensure that the making of an order for home detention should not be permitted to undermine the sentencing objectives of punishment and general deterrence:23 The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order — even if it will assist in the rehabilitation of the defendant and provide sufficient personal deterrence — does not inappropriately undermine achievement of the objectives of punishment and general deterrence. The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court’s concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention. 80 Before addressing the exercise of discretion, it is next necessary to address the constraints under s 71(2) of the Sentencing Act which may preclude making an order that the sentence be served on home detention. These include determining whether “the making of such an order would, or may, affect public confidence in the administration of justice”, s 71(2)(a) of the Sentencing Act. It was not suggested that any of these constraints applied to this case. For example, it was not suggested that the making of such an order would, or may, affect public confidence in the administration of justice, or that the appellant’s suggested address was not suitable, or that the Department for Correctional Services does not have adequate resources for the proper monitoring of the appellant.24 81 It is now necessary to address the exercise of discretion to make an order for home detention in this case. None of the matters which must be considered under s 71(3) speak against an order for home detention. 82 Whilst the seriousness of the appellant’s offending might not ordinarily warrant the leniency implicit in an order for home detention, the unusual and peculiar circumstances of this case warrant that sentencing option. 20 R v Dell (2016) 126 SASR 571, [43]-[44] (Doyle J, with whom Kelly and Parker JJ agreed). 21 R v Dell (2016) 126 SASR 571, [51] (Doyle J, with whom Kelly and Parker JJ agreed). 22 R v Dell (2016) 126 SASR 571, [47], [55]-[58] (Doyle J, with whom Kelly and Parker JJ agreed). 23 R v Dell (2016) 126 SASR 571, [57] (Doyle J, with whom Kelly and Parker JJ agreed). 24 R v Hosking (2017) 128 SASR 37, [54]-[55] (Blue J, with whom Parker J agreed). -- 16 of 17 -- [2023] SASCA 45 The Court 15 83 Those circumstances have already been mentioned. They include that the appellant has no prior criminal record and has already spent time in custody. They also include the nature of the offending and that, in a case of recklessly causing serious harm, general deterrence is of less importance than it might be in a case of intentionally causing serious harm.25 In addition, and despite the absence of contrition, the matters addressed by Dr Stewart, together with the appellant’s move from Victoria to South Australia, suggest that in this case there is a low prospect of reoffending. To these considerations may be added the fact that the length of the head sentence and the non-parole period do not, of themselves, rule out home detention. 84 Finally, the general nature of the appellant’s personal circumstances, particularly the frailty of her mental health, together with the evident hardship confronting her children when moving to Adelaide, also support the making of an order for home detention in this case. Conclusion 85 On re-sentence the Court will order as follows: 1. The appellant’s District Court sentence is set aside. 2. After reduction for time spent in custody, the sentence of imprisonment will be three years, five months and eight days and the non-parole period will be fixed at 15 months and eight days. 3. There will be an order that the appellant’s sentence be served on home detention at the address provided to the Court, with conditions to be specified which include allowing the appellant to work and assist with the schooling of her children. 86 The sentence will commence to operate today. 25 R v Galffy [2009] SASC 261, [35] (Bleby J, with whom Doyle CJ agreed). -- 17 of 17 --