THE KING v SALLI-ANNE NEYLAND [2023] SASCA 61

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE STRETTON) DCCRM-23-006247 Applicant: THE KING Counsel: MR M FOUNDAS WITH MS I MICKAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: SALLI-ANNE NEYLAND Counsel: MR G MEAD SC WITH MR P O'CONNOR - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 08/06/2023 File No/s: SCCRM-23-019707 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 NEYLAND [2023] SASCA 61 Judgment of the Court of Appeal (The Honourable Justice Doyle, the Honourable Justice David and the Honourable Auxiliary Justice Dalton) 9 June 2023 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE This is an appeal by the Director of Public Prosecutions (SA) (‘the Director’) against sentence. The respondent pleaded guilty to one count of unlawful strangulation in a domestic setting, contrary to s 20A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) (Count 1), one count of aggravated assault causing harm, contrary to s 20(4)(c) of the CLCA (Count 2), and one count of aggravated assault causing harm, contrary to s 20(4)(b) of the CLCA (Count 3). The offending occurred over two days and involved the respondent using a phone charging cord to strangle the complainant (Count 1), hitting the complainant with a metal pole (Count 2), and kicking the complainant in the face (Count 3). At the time of the charged acts, the complainant was nine years old and living in the respondent’s care under a kinship placement. The sentencing Judge utilised s 26 of the Sentencing Act 2017 (SA) and imposed a sentence of three years and two months imprisonment. The head sentence was reduced on account of the respondent’s guilty plea to two years and 21 days. A non-parole period of five months was fixed, being about -- 1 of 15 -- 20 per cent of the head sentence. Both the head sentence and the non-parole period were backdated to commence on 19 January 2023, when the respondent was arrested and remanded in custody. An intervention order was also imposed for the protection of the complainant. The sentencing Judge declined to suspend the sentence or order that it be served on home detention. The Director now seeks permission to appeal on the ground that the non-parole period was manifestly inadequate. There is no challenge to the head sentence. Held, per the Court, granting permission to appeal and allowing the appeal: 1. The non-parole period imposed by the sentencing Judge was manifestly inadequate. It is necessary to grant the Director permission to appeal to maintain sentencing standards and so that public confidence in the administration of justice is not undermined. 2. Permission to appeal is granted and the appeal is allowed. 3. The sentence is set aside. 4. The respondent is re-sentenced to a head sentence of two years and 21 days with a non-parole period of 13 months. An intervention order in the same terms as imposed at first instance is ordered. 5. The head sentence and the non-parole period are to commence from 19 January 2023. Criminal Law Consolidation Act 1935 (SA) ss 20A(1), 20(4)(b), 20(4)(c); Sentencing Act 2017 (SA) s 26, 26(2a)(b), 28, referred to. Adams (A Pseudonym) v The Queen [2022] SASCA 47; Bugmy v The Queen (1990) 169 CLR 525; R v McIntyre (2020) 138 SASR 17; R v Sarandoglou (2010) 107 SASR 396; Bates v Police (1997) 70 SASR 66; Deakin v The Queen (1984) 58 ALJR 367; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Everett v The Queen (1994) 181 CLR 295; Hili v The Queen (2010) 242 CLR 520; Markovic v The Queen (2010) 30 VR 589; Munda v Western Australia (2013) 249 CLR 600; Neill v Police [1999] SASC 270; Power v The Queen (1974) 131 CLR 623; R v Carpentieri (2001) 81 SASR 164; R v Constant (2016) 126 SASR 1; R v Creed (1985) 37 SASR 566; R v Morse (1979) 23 SASR 98; R v Nemer (2003) 87 SASR 168; R v Payne (2004) 89 SASR 49; R v Palmer [2016] SASCFC 34; R v Peet [2018] SASCFC 91; R v Osenkowski (1982) 30 SASR 212; R v Shrestha (1991) 173 CLR 48; Trott-Dan v The King [2023] SASCA 2; Wong v The Queen (2001) 207 CLR 584; Zefi v The Queen [2021] SASCA 15, discussed. -- 2 of 15 -- R v NEYLAND [2023] SASCA 61 Court of Appeal – Criminal: Doyle and David JJA and Dalton AJA 1 THE COURT: On 24 May 2023, following pleas of guilty, the respondent was sentenced for the offences of: • unlawful strangulation in a domestic setting for which the maximum penalty is imprisonment for seven years (Count 1);1 • aggravated assault causing harm for which the maximum penalty is imprisonment for five years (Count 2);2 • aggravated assault causing harm for which the maximum penalty is imprisonment for four years (Count 3).3 2 The sentencing Judge utilised s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) and adopted a starting point of three years and two months imprisonment, reduced on account of the respondent’s guilty plea to two years and 21 days. A non-parole period of five months was fixed, being about 20 per cent of the head sentence. Both the head sentence and non-parole period were backdated to commence on 19 January 2023, when the respondent was arrested and remanded in custody. She has remained in custody since that date. An intervention order was also imposed for the protection of the complainant. The respondent is eligible for parole on 19 June 2023. 3 The Director of Public Prosecutions (SA) (‘the Director’) now seeks permission to appeal against the respondent’s sentence on the sole ground that the non-parole period imposed was manifestly inadequate. 4 The question of permission to appeal was referred to this Court for consideration. 5 For the reasons that follow, we grant the Director permission to appeal, allow the appeal and re-sentence the respondent. Circumstances of the offending 6 The complainant in this matter is a young child. He was nine years old at the time of the offending. The respondent is the stepsister of the complainant’s father. 7 On 1 December 2022, the complainant and his three siblings were removed from the care of their biological parents and placed under the care of the Department for Child Protection (‘DCP’). At the time of the offending, the 1 Contrary to s 20A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). 2 Contrary to s 20(4)(c) of the CLCA. 3 Contrary to s 20(4)(b) of the CLCA. -- 3 of 15 -- [2023] SASCA 61 The Court 2 complainant and his younger brother resided within a kinship placement with the respondent and three of her biological children. 8 On 17 January 2023, the respondent called the victim into her bedroom. She was upset with him because she believed he had behaved inappropriately towards his younger brother and her four-year old son by recording a sexual video of them. Once inside the bedroom, the respondent picked up a phone charging cord and strangled the complainant with it. She repeated this action two or three times within a minute. Every time he started to make a gurgling noise, she let go. (Count 1). This caused the complainant’s face to turn purple and prevented him from breathing. The respondent told the complainant that if he told anyone about her conduct, she would slice his neck. This threat was not the subject of a charge. She then kicked and punched the complainant while calling him names like ‘paedophile’, ‘dog’ and ‘cunt’. This behaviour was also not the subject of a charge. The respondent proceeded to pick up a metal pole from an adjacent drying rack and hit the complainant numerous times on his stomach, buttocks and thighs over a period of hours (Count 2). Following that assault, the respondent sent a text message to her sister: Respondent: You home ? Or in Adelaide Hey so you know how I said that kid is a pedo ? Turns out he defs was I bashed him with a pole and choked the little cunt Fingers crossed I don’t go to jail *Kissing emoji* Sister: Omg what tha [sic] fuck Really what happened yes I’m still in Adelaide 9 The respondent kept the complainant in her room throughout the night. She continued to question him about her view that he had engaged in sexualised behaviour. When he gave answers she did not like, she punched or hit him with the metal pole. 10 On 18 January 2022, the respondent kicked the complainant in the face with the bridge of her foot after he allegedly told her boyfriend that he had touched her (the respondent) while she was asleep and that she had woken up and allowed it to happen (Count 3). During this attack, the respondent threatened to kill the complainant. She said, ‘If you keep fucking lying, I will literally kill you. I will literally kill you.’ This threat was not the subject of a charge. 11 Later that day, officers from the DCP attended the respondent’s address and removed the complainant from the respondent’s care after becoming concerned for his wellbeing. The police were notified. -- 4 of 15 -- [2023] SASCA 61 The Court 3 12 After being removed from the respondent’s care, the complainant was examined by Dr Shirley Sthavan at the Lyell McEwin Hospital. Dr Sthavan observed bruising to the respondent’s left and right shoulders, right and left thighs, abdomen and right buttock. Dr Sthavan opined that the bruises on the complainant’s left thigh and right buttock were consistent with being hit with a metal object; the multiple injuries on both arms could be accounted for by the complainant being punched, and the bruises on his abdomen could have resulted from him being hit with a small metal object. Dr Sthavan said that while the injuries were not life threatening and would not cause any long-term sequelae, they would have caused the complainant pain at the time they were inflicted and ongoing discomfort in the following days. In addition to the physical injuries sustained by the complainant, he continues to suffer significant trauma from the experience. 13 On 19 January 2023, the respondent was arrested by police and remanded in custody. The respondent told police officers that the complainant had been sexually abusing her children. She alleged that he had recorded a sexual video of his younger brother and her four-year old son. She said that she had viewed the video and, in it, the complainant told the children to ‘shake their bum[s] with their pants on’. She also said the video contained footage of the complainant praising his younger brother as he sat down on the couch, pulled his pants down, and ‘fiddle[d] with his genitals’. Police subsequently located and interrogated the video footage; it did not contain any inappropriate content. Personal circumstances 14 At the time of sentencing, the respondent was 32 years old. She was born in Shepparton, Victoria, and is the youngest of four children. The respondent’s mother, who she describes as a drug addict and a prostitute, left the family home when she was six months old. Thereafter, she had limited contact with her mother and it was not until she was seven years old that she first recalls meeting her mother when they both attended court in relation to sexual offending committed against the respondent by a neighbour. 15 The respondent grew up primarily in the care of her father, who relocated the family to Dubbo in New South Wales after the respondent’s mother left, and then to Wentworth in the Riverland region. The respondent shared a close relationship with her father and had a relatively stable upbringing until he sustained a work-related back injury which forced him to stop working. After that, her father began drinking to excess which resulted in his behaviour becoming increasingly volatile. This put a strain on the respondent’s relationship with her father and, ultimately, when she was about 12 years-old, she moved back to Adelaide with her older sister to live with her mother. This was not a satisfactory home either. Her sister moved away almost immediately, and after a short time, when the respondent was about 13 years old, she began living periodically at her brother’s house. -- 5 of 15 -- [2023] SASCA 61 The Court 4 16 The respondent left school in year nine and worked in various jobs including at a fast-food chain and, later, a marketing company. She commenced her first relationship at age 14 with a 28-year old man who, while not physically abusive, was manipulative and controlling of her. It was during this relationship that the respondent was first introduced to intravenous drug use by her partner, who himself suffered from drug and gambling addictions. Shortly after the birth of her first child, at age 16, the respondent began using illicit drugs. The relationship with her partner broke down in 2010 after the birth of their second child. 17 After her first relationship ended, the respondent spent time with her father until he passed away less than a year later. Following his death, the respondent’s drug use worsened, and she began to experience psychotic episodes which resulted in her being detained for periods of time. 18 In 2013, after the respondent was reported to the DCP, she made efforts to improve her functioning and capability as a mother. She moved to Victoria where she commenced a relationship with a new partner with whom she had two children. In the beginning, this relationship was stable and relatively unproblematic. The respondent obtained employment working as a barista in a roadhouse and was able to abstain from drug use. Her partner, however, would regularly consume cannabis. The respondent became the primary bread winner and, while her partner would stay home and consume cannabis, she continued to work and support the family. This caused the relationship to deteriorate. Further strain was placed on the relationship as her partner’s behaviour, while under the influence of cannabis, became increasingly erratic. On two occasions, police were called to attend at their place of residence. The respondent ultimately ended the relationship and moved into a women’s refuge with her children. 19 The respondent returned to South Australia in 2021. She engaged in counselling and consulted with her general practitioner for assistance with her mental health. She obtained employment and, at the time of the offending, was working three part-time jobs to support her three younger children as a single mother. She is the sole carer for her children. Since her arrest, they have been staying with relatives and receiving counselling. 20 The respondent has prior criminal convictions for driving offences and failing to comply with bail agreements which have limited relevance to sentence. 21 Before the sentencing Judge, it was the respondent’s submission that the offending was due to her belief that the complainant had sexually assaulted her child and her reaction was exacerbated by her own experience of child sexual abuse. The respondent read an apology for her offending in which she expressed her remorse. Sentencing remarks 22 The sentencing Judge emphasised the seriousness of the offending. -- 6 of 15 -- [2023] SASCA 61 The Court 5 23 His Honour acknowledged the respondent’s submission that she committed the offences due to her belief that the complainant had acted inappropriately towards her children; however, he did not accept that her views were reasonable. His Honour said: The court has carefully assessed the evidence, your counsel's submissions and the totality of the circumstances. Particularly in light of your misinterpretation of the video, the court accepts that whilst on the balance of probabilities you came to subjectively suspect the victim, it is not possible to accept on the balance of probabilities that any such of your suspicions were reasonable. The court has regard to all the tendered and submitted material in coming to that conclusion. 24 In any event, the sentencing Judge considered that the respondent’s ‘reasonable suspicion’ was irrelevant: However, whether you did or did not have a reasonable suspicion was entirely not to the point. The victim was a nine-year-old child who was entitled to your protection and guidance, particularly if there were any suggestion of inappropriate conduct on that child's part. Instead, you decided to characterise the nine-year-old child as a paedophile when a child cannot by definition be a paedophile, without any proof of the same, without giving him any opportunity to defend himself, and you just brutally and repeatedly assaulted him. … Had you legitimately suspected any inappropriate behaviour, there are 101 other things you could have done rather than launch a brutal attack on an innocent and defenceless child. You could have spoken to and counselled the child. You could have rung the department. You could have called the police. You could have separated him from the rest of the family for the purposes of having him counselled, any number of a hundred other things. Rather you attacked him, then triumphantly texted a friend, wrongly telling that friend that the victim was a paedophile rather than a nine-year-old boy, and you appeared pleased with yourself that you had 'bashed him with a pole and choked the little cunt'. 25 The respondent voluntarily told the employees of DCP what she had done on 18 January 2022, and she likewise told the police the same day. There is some difficulty with regarding this as early remorse, as it seems from the police interview that she regarded her conduct as justified by what she referred to as the complainant’s ‘paedophilia’. 26 The sentencing Judge outlined the respondent’s personal circumstances in similar terms to above and noted that imprisonment would have a harsh impact on her children. His Honour said: The Court has regard to the effect that imprisonment is having and would have on three children who are still dependent on you as indeed it must be having at the moment. You are estranged from your most recent partner, so as the sole parent that affect will be exacerbated. In layman’s terms, it will be particularly hard in the future, as I am sure it is particularly hard on you and your three children at the moment. 27 The sentencing Judge considered it appropriate to proceed pursuant to s 26 of the Sentencing Act and impose a single penalty. However, his Honour noted that the conduct the subject of Count 3 occurred on a ‘separate occasion’ to the conduct -- 7 of 15 -- [2023] SASCA 61 The Court 6 the subject of Counts 1 and 2. Accordingly, under s 26(2a)(b), a notional sentence of two years imprisonment was imposed for the offending the subject of Counts 1 and 2, and 14 months imprisonment for the offending the subject of Count 3. His Honour ordered that those sentences be served cumulatively, resulting in an accumulated head sentence of three years and two months. That sentence was reduced by 35 per cent on account of the respondent’s guilty plea to two years and 21 days imprisonment. A non-parole period of five months imprisonment was imposed. 28 In fixing the non-parole period. His Honour said: However, in light of the totality of the circumstances, that your deluded belief as to the appropriateness of your conduct sprang in part from your own molestation as a child and that your time in custody will as a single mother create a degree of exceptional hardship to the three children who have remained in your care but who have now been separated from you and placed with more distant relatives; all of that together justifies a particularly merciful non-parole period. 29 The sentencing Judge declined to suspend the sentence or order that it be served on home detention. 30 Both the head sentence and non-parole period were backdated to commence on the 19 January 2023. The result of that order is that the respondent is eligible for parole on 19 June 2023. Manifest inadequacy 31 The sole ground of appeal advanced by the Director is that the non-parole period, as a proportion of the head sentence, is manifestly inadequate. There was no challenge to the head sentence imposed. 32 A determination whether a sentence is manifestly inadequate requires a consideration of all matters relevant to sentencing including the maximum penalty, where the objective circumstances of the offending fall in the scale of seriousness for offences of that type, and the personal circumstances of the offender.4 An appellate court must essentially repeat the task undertaken by the sentencing Judge and, in doing so, determine whether the sentence imposed fell outside the permissible range such that it is plainly inadequate.5 A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.6 Intervention is warranted only where the appellate court concludes there has been some misapplication of principle, even though where and how is not apparent from the sentencing remarks.7 4 Hili v The Queen (2010) 242 CLR 520 at [60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; R v Morse (1979) 23 SASR 98 at 99 per King CJ (with whom White and Mohr JJ agreed). 5 R v Peet [2018] SASCFC 91 at [6] per Kourakis CJ, Doyle and Hinton JJ. 6 Hili v The Queen (2010) 242 CLR 520 at [59]-[60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 7 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, citing Wong v The Queen (2001) 207 CLR 584 at [58] per Gaudron, Gummow and Hayne JJ. -- 8 of 15 -- [2023] SASCA 61 The Court 7 33 The authorities relevant to the fixing of a non-parole period were recently considered by this Court in R v McIntyre.8 34 A non-parole period reflects the minimum proportion of the head sentence that must be served to achieve the purposes of the head sentence.9 In Bugmy v The Queen,10 Mason CJ and McHugh J said:11 Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v Morgan and Morgan. In that case Jenkinson J, with whom Kaye J agreed, pointed out that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community “will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice”. (citations omitted) 35 All the factors relevant to the determination of the head sentence are relevant to the determination of the non-parole period, although the weight to be attached to those factors differs to reflect the differing purposes of each.12 A defendant’s personal circumstances, and, in particular, those circumstances that bear upon a defendant’s prospects of rehabilitation, may be more important when fixing a non-parole period than in the determination of the head sentence.13 However, the gravity of the offending remains an important consideration in determining the length of the non-parole period.14 36 The length of the non-parole period is inextricably linked to the length of the head sentence; the former must reflect an appropriate proportion of the latter. Kourakis J (as his Honour then was) explained the relationship between the head sentence and the non-parole period in R v Sarandoglou:15 It follows that the length of time during which an offender will benefit from the opportunity to rehabilitate while on parole in the community is as relevant a consideration in determining the length of the non-parole period as the requirements of punishment and deterrence. Moreover, the very proposition that the non-parole period must, “no less than the head sentence”, also reflect the need for punishment, deterrence and prevention 8 (2020) 138 SASR 17 at [76]-[86] per Doyle J (with whom Stanley and Hughes JJ agreed). 9 Power v The Queen (1974) 131 CLR 623 at 626-629 per Barwick CJ, Menzies, Stephen and Mason JJ; Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 at 531 per Mason CJ and McHugh J, 537-538 per Dawson, Toohey and Gaudron JJ; R v Shrestha (1991) 173 CLR 48 at 62-63 per Brennan and McHugh JJ, 69 per Deane, Dawson and Toohey JJ; R v McIntyre (2020) 138 SASR 17 at [76]-[79] per Doyle J (with whom Stanley and Hughes JJ agreed). 10 (1990) 169 CLR 525. 11 Bugmy v The Queen (1990) 169 CLR 525 at 531 per Mason CJ and McHugh J. 12 Bugmy v The Queen (1990) 169 CLR 525 at 531 per Mason CJ and McHugh J. 13 Bugmy v The Queen (1990) 169 CLR 525 at 532 per Mason CJ and McHugh J; R v Palmer [2016] SASCFC 34 at [3] per Kourakis CJ; R v McIntyre (2020) 138 SASR 17 at [79]-[84] per Doyle J. 14 R v Creed (1985) 37 SASR 566 at 568 per King CJ (with whom Cox and Olsson JJ agreed). 15 (2010) 107 SASR 396 at [33]-[36] per Kourakis J. -- 9 of 15 -- [2023] SASCA 61 The Court 8 necessarily entails a proportionate relationship between the non-parole period and the head sentence. There is an indissoluble and correlative relationship between the proportion of the head sentence spent in custody and the proportion spent on parole. I find it conceptually impossible to conceive the period of imprisonment which is the minimum necessary for deterrence and punishment without also determining the scope to allow for parole because a view about one will necessarily affect the position taken on the other. Moreover, the same factual circumstances will be relevant to both the head sentence and the non-parole period. The process which I have just described is, as I observed in Foley v Police, the reason that non-parole periods are often fixed at what is sometimes called the usual proportion. In R v Shrestha, Deane, Dawson and Toohey JJ explained that: “Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing Judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine according to the circumstances which then exist, whether the offender should be released on parole.” (Emphasis added.) It follows that, although a non-parole period is fixed as a certain period of time, it must necessarily reflect a proper proportion of the head sentence. (citations omitted) 37 There is no ‘prescriptive range within which all non-parole periods must fall’,16 and sentencing judges exercise a broad discretion when weighing the various factors which bear upon a defendant’s prospects of rehabilitation.17 However, it has been observed that when the considerations of deterrence, punishment and community protection are taken into account, non-parole periods are typically fixed at about 50 to 75 per cent of the head sentence.18 If a sentencing judge fixes a non-parole period at either end of this range, or outside of this range, the reasons for doing so should be clearly explained in the remarks.19 38 In the present case, the Director submits that the sentencing Judge fixed a disproportionately low non-parole period when considered in proportion to an already moderate head sentence. Despite labelling the offending as ‘very serious’, his Honour considered that the ‘totality of the circumstances’, the respondent’s ‘deluded belief’ that the complainant had sexually mistreated her son and his younger brother, and the hardship that would be inflicted upon her children as a result of her imprisonment, justified a ‘particularly merciful non-parole period.’ 16 R v McIntyre (2020) 138 SASR 17 at [84] per Doyle J, citing Hili v The Queen (2010) 242 CLR 520 at [36]-[44] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 17 R v McIntyre (2020) 138 SASR 17 at [83]-[85] per Doyle J. 18 R v Palmer [2016] SASCFC 34 at [4] per Kourakis CJ; R v McIntyre (2020) 138 SASR 17 at [84] per Doyle J; Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [45] per Livesey P, Doyle and David JJA; Trott-Dan v The King [2023] SASCA 2 at [75] per Lovell, Doyle and David JJA. 19 Trott-Dan v The King [2023] SASCA 2 at [75] per Lovell, Doyle and David JJA. -- 10 of 15 -- [2023] SASCA 61 The Court 9 39 The Director submits that it is not readily apparent what the sentencing Judge meant when referring to the ‘totality of the circumstances.’ If, in referring to the ‘totality of the circumstances’, his Honour was denoting the respondent’s misguided belief that the complainant was a ‘paedophile’ and that her motivations for the offending were therefore punishment and vigilantism, the Director submits that his Honour erred in considering this circumstance to be a factor which justified the fixing of a ‘lower than usual’ non-parole period. To the contrary, the Director submits that the community must be deterred from partaking in such vigilante behaviour; and even if the complainant had been exhibiting problematic or sexualised behaviour towards the respondent’s son and his younger brother, this does not mitigate the seriousness of her conduct and only serves to highlight the need for the complainant’s protection. 40 Whilst relevant to the respondent’s state of mind, as an explanation for her unlawful behaviour, the respondent’s belief or suspicion as to the complainant’s conduct, did little to mitigate her offending. As the sentencing Judge emphasised, there were other legitimate options available to her in dealing with her concerns as to his behaviour. It is also to be emphasised that the offending did not involve a spontaneous, short-lived loss of control. Rather, the charged offences, the subject of Counts 1 and 2, occurred against a background of other uncharged assaults and threats from about 6.00pm one evening until early the following morning. The assault, the subject of Count 3, also occurred later that morning. Whilst the respondent is not to be punished for her uncharged conduct, it does reduce the scope for leniency. 41 The Director also submits that the sentencing Judge afforded too much leniency to the respondent on account of the hardship her children would face whilst she was imprisoned. 42 The hardship of a person’s imprisonment on their dependants will only have a significant impact upon the sentence to be imposed in exceptional circumstances. In Adams (A Pseudonym) v The Queen,20 Livesey JA (as his Honour then was), reviewed the manner in which authorities in South Australia have applied and developed the ‘exceptional circumstances’ test before concluding:21 When the cases since R v Wirth are closely considered, it can be seen that the position at common law and under the Sentencing Act regarding hardship to dependants has over time been refined. The requirement to show “exceptional circumstances” before hardship to dependants becomes relevant has not been insisted upon. Rather, hardship to dependants has usually been regarded as relevant to the exercise of the sentencing discretion. Since at least Bates v Police, hardship to dependents has not materially affected the sentence which is imposed unless that hardship is shown to have been out of the ordinary, special or uncommon or, as was said in Zefi v The Queen, relatively serious or extreme. 20 [2022] SASCA 47. 21 Adams (a pseudonym) v The Queen [2022] SASCA 47 at [50]-[59] per Livesey JA (with whom Doyle and Bleby JJA substantially agreed); Deng v The King (No 2) [2023] SASCA 45. -- 11 of 15 -- [2023] SASCA 61 The Court 10 … So, even where the hardship to the dependants of a defendant is raised as an issue, it remains necessary to consider and weigh all other relevant sentencing considerations. The hardship caused to the dependants of a defendant will not generally control the sentencing outcome, nor will it become the dominant factor. Most sentences of imprisonment seriously and deleteriously affect the dependants of a defendant. That is the ordinary and usual effect of a sentence, particularly sentences involving lengthy terms of imprisonment. … The relative weight given to this issue must vary according to the circumstances of the case. The relevant considerations will include the need to enforce the criminal law, the need to protect the community, the seriousness of the offending, the need for punishment and deterrence (general and specific), the defendant's prospects for rehabilitation, as well as the likely nature and degree of the hardship to the defendant's dependants. Any evidence about alternative care arrangements, and the immediate and likely long term physical and psychological impact on the dependants, must be carefully considered. The public interest in imposing a sentence on the defendant which appropriately recognises the purposes of punishment and deterrence, and any other relevant sentencing objectives, must be balanced against the public interest in the welfare of the dependants of the defendant. In a case where the hardship is out of the ordinary, the public interest in the welfare of the dependants of the defendant may be reflected by reducing what is an otherwise appropriate sentence. The issue of proved hardship to dependants which is out of the ordinary or extreme might readily be reflected in the non-parole period which is fixed, as was done in Neill v Police and it might also play a part when considering other elements of a sentence, including the head sentence. (citations omitted) 43 In the present case, the sentencing Judge considered, among other things, that the ‘exceptional hardship’ incurred by the respondent’s three children upon her imprisonment ‘justifies a particularly merciful non-parole period’. While the Director does not deny that the respondent’s children will likely face some hardship, it is submitted that any hardship was not sufficient to raise it to the exceptional level contemplated in the authorities. The Director contends that there was nothing out of the ordinary,22 special, uncommon,23 or relatively serious or extreme24 about the hardship suffered by the respondent’s children to justify alone, or cumulatively with other matters, the non-parole period imposed. 44 At the time of sentencing, the respondent’s three dependent children resided in Victoria: the eldest child with the respondent’s sister, and her two youngest children with her father-in-law. Counselling was arranged for each child upon their mother’s arrest. There was no suggestion or evidence that those arrangements 22 Bates v Police (1997) 70 SASR 66 at 69 per Perry J; R v Carpentieri (2001) 81 SASR 164 at [19] per Doyle CJ (with whom Martin and Besanko JJ agreed); Neill v Police [1999] SASC 270 at [24] per Doyle CJ. 23 R v Constant (2016) 126 SASR 1 at [66]-[68] per Nicholson, Lovell and Hinton JJ, citing Markovic v The Queen (2010) 30 VR 589 at [20] per Maxwell P, Nettle, Neave, Redlich and Weinberg JJA. 24 Zefi v The Queen [2021] SASCA 15 at [20]-[21] per Doyle JA (with whom Kelly P and Bleby JA agreed). -- 12 of 15 -- [2023] SASCA 61 The Court 11 could only continue for a finite period. Moreover, there was no evidence to suggest that the children were not receiving adequate care and support. Whilst it is to be accepted that the respondent’s children will suffer some hardship being separated from their mother, and each other as part of a family unit, their circumstances were not sufficiently special, uncommon, or relatively serious or extreme to constitute such hardship as to warrant the leniency afforded by the sentencing Judge in the non-parole period. 45 The circumstances of this offending placed it at the upper end of the scale of objective seriousness. It was attended by several serious features including that the complainant was a vulnerable nine-year old child, who, at the time of the offending, was in the respondent’s care and protection without the ability to independently access support or advocate for himself. He also sustained not insignificant physical injuries as a result of the attack and continues to suffer from emotional and psychological trauma and nightmares. Moreover, the offending was not isolated nor confined to a spontaneous incident but involved numerous assaults coupled with threats, over two days, as well as the use of weapons. 46 It was necessary that both the head sentence and non-parole period appropriately met the sentencing objectives of punishment and general and personal deterrence. The respondent’s personal circumstances justified some leniency in the non-parole period. She had a difficult background as a child and young adult, yet obtained employment, abstained from drug use, and was committed to the welfare of her own children. There was also a basis to have some confidence as to her prospects of rehabilitation by reason of her early guilty plea, and her subsequent expressions of remorse and contrition. However, the non-parole period fixed by the sentencing Judge was inadequate to achieve other sentencing objectives; it gave insufficient recognition to principles of punishment and general deterrence. For the reasons outlined earlier, this offending was a very serious example of violence on a young vulnerable child, in a domestic setting, by a person entrusted with his care and protection. The lack of proportion between the head sentence and the non-parole period failed to give proper effect to the purposes of sentence and resulted in a manifestly inadequate sentence. Permission to appeal 47 Despite concluding that the non-parole period imposed was manifestly inadequate, it does not follow that the Director should be granted permission to appeal against sentence. 48 The principles applicable to prosecution appeals against sentence are well-established25 and it is not necessary to set them out at great length. On an appeal by the Director, where the complaint involves one of manifest inadequacy, the grant of permission is reserved for those ‘rare and exceptional’ cases where it is necessary for the appeal court to determine a matter of principle, to establish or maintain adequate sentencing standards or to correct idiosyncratic views expressed 25 Everett v The Queen (1994) 181 CLR 295 at 299 per Brennan, Deane, Dawson and Gaudron JJ. -- 13 of 15 -- [2023] SASCA 61 The Court 12 by individual judges as to offending or sentencing or to correct a sentence which is so inadequate that it involves an error of principle.26 If the sentence is so far below the appropriate standard that to allow the sentence to stand would undermine public confidence in the administration of justice, it may also be appropriate to grant permission to appeal even though no point of general principle will be established by the case.27 49 In the present case, the non-parole period was only 20 per cent of the head sentence and significantly below the appropriate non-parole period necessary to give proper effect to the principles of general and personal deterrence, and punishment. The non-parole period imposed was a substantial departure from the permissible range for these offences and this offender. As discussed earlier, the respondent had committed serious offences on a young and vulnerable member of the community in her protection and care. There was little to mitigate her conduct. Notwithstanding that the respondent will be twice vexed, it is necessary to grant permission appeal to uphold sentencing standards. Moreover, to allow the sentence to stand would undermine confidence in the administration of justice. 50 Accordingly, we grant permission to appeal. Resentence 51 On re-sentencing the respondent, in circumstances where there was no challenge to the head sentence, nor to the reduction made on account of her guilty pleas, we impose the same head sentence of two years and 21 days. There was no suggestion that this Court should order that the sentence be served on home detention or suspended, and we decline to so order. 52 We fix a non-parole period of 13 months which is slightly higher than 50 per cent of the head sentence so as to provide some leniency for those matters personal to the respondent. We impose a fresh intervention order pursuant to s 28 of the Sentencing Act in the same terms as presently in place preventing the respondent from directly or indirectly approaching, contacting or communicating with the complainant. Orders: 1. Permission to appeal is granted and the appeal is allowed. 2. The sentence is set aside. 3. The respondent is re-sentenced to a head sentence of two years and 21 days with a non-parole period of 13 months to commence from 19 January 2023. 26 R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; R v Payne (2004) 89 SASR 49; Munda v Western Australia (2013) 249 CLR 600 at [87] per Bell J. 27 R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ. -- 14 of 15 -- [2023] SASCA 61 The Court 13 4. An intervention order is imposed in the same terms as presently in place on the District Court file. -- 15 of 15 --