KARALL v POLICE - [2020] SASC 241

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KARALL v POLICE
[2020] SASC 241
Judgment of The Honourable Justice Peek
18 December 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
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 - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
The appellant pleaded guilty to a number of serious substantive charges committed between December 2016 and September 2019, together with five charges of bail offences. The Magistrate imposed a head sentence of two years and four months imprisonment.
The grounds of appeal were that the sentence was manifestly excessive and that the Magistrate: had failed to consider the five and a half months the appellant had spent in custody when considering whether no sentence other than a custodial sentence was appropriate; had failed to give credit for a further three days in custody and a period of two months on home detention bail; and had failed to consider partial concurrency.
Held, dismissing the appeal:
1. The sentence imposed is not manifestly excessive.
2. The Magistrate was correct in coming to the view that, first, no sentence other than a custodial sentence was appropriate and secondly, that no shorter sentence than two years and four months was appropriate. His Honour was aware that the appellant had served five and a half months imprisonment, and it was within the ambit of his sentencing discretion to decide that, in all of the circumstances, the offending was too serious to either suspend a custodial sentence or impose a sentence of home detention.
3. It is not at all clear that the Magistrate did not take into account the period of home detention. In any event, if there were to be a re-sentencing, the sentence I would consider appropriate would be significantly greater than the present sentence; and thus the appropriate order would be to dismiss the appeal. Kentwell v The Queen (2014) 252 CLR 601 considered.
4. In the circumstances of this case, there was no requirement for any further partial concurrency of sentence beyond that already given.
Kentwell v The Queen (2014) 252 CLR 601; R v Lowe [2016] SASCFC 118, considered.

KARALL v POLICE
[2020] SASC 241
Magistrates Court Appeal

PEEK J: Appeal against severity of sentence.
To appropriate the learned Magistrate’s words, the appellant pleaded guilty to a raft of substantive charges committed between December 2016 and September 2019, together with some five additional charges of bail offences.
The first offence was committed on 10 December 2016. It was quite a serious offence of Serious Criminal Trespass and Theft. It was committed upon a residential home and goods to the value of $18,000 were stolen, with none able to be recovered. The offence was committed in a very deliberate manner by wearing latex gloves, which prevented the leaving of fingerprints. However, during the commission of the offence, the appellant somehow snagged one of the gloves and a piece of latex became detached. This piece was found by the householder and, upon later forensic examination, furnished a DNA match to the appellant who was arrested for that offence on 24 May 2017.[1] The appellant then falsely denied committing the offence. He was granted bail.
[1] For a similar mishap with a disposable glove, see R v Lowe [2016] SASCFC 118 at [20].
The further substantive offences were all committed while he was on bail. They comprised the following.
-On 13 October 2017, a basic assault on a Mr Sharrock. This was a forceful punch to the head with a closed right fist. The victim went down to the ground and the appellant then attempted to kick him in the head, but missed.
-On 14 February 2018, a basic assault on a Mr Vrettakos. This was accompanied by a threat to kill and comprised two forceful punches to the head and one kick to the head.
-On 18 March 2018, a further basic assault on Mr Vrettakos. This comprised four forceful punches to the head with both fists.
-On 20 July 2018, a further Serious Criminal Trespass to a residential house and two counts of theft of goods therein. Damage to a screen door and a window was also caused.
-On 9 August 2018, a theft from a supermarket of goods to the value of $114.56.
-On 11 October 2018, a serious theft of tradesman’s tools to the value of approximately $2,000 from a vehicle parked in the driveway of the owner’s residential home.
The Grounds of appeal
Initially, the grounds of appeal complained of the Magistrate’s decisions not to order that the sentence be suspended or that it be served on home detention. However, the amended Grounds of appeal withdrew those grounds and substituted the following:
1.The Learned Sentencing Magistrate (‘LSM’) erred in failing to consider relevant matters in imposing sentence, or in the alternative, erring in provided [sic providing] inadequate reasons as to why the factors were rejected;
a. In considering the time the appellant had served in custody in the exercise of the discretion under section 96 and 71 of the Sentencing Act 2017;
b. In considering the credit available for time in custody and on home detention;
c. In considering the discretion to make the sentences partially concurrent;
2.The sentence was manifestly excessive;
Ground 2 of appeal: Complaint of Manifest Excess
The offending is serious, and as to some of the offences very serious. After the first offence, the offending was significantly exacerbated by its commission while on bail.
The appellant has shown little, if any, contrition. His behaviour of further offending while on bail, non-appearance at Court and breaching of bail agreements displays a contempt for the criminal justice system. Both personal and general deterrence are required here. I indicate that I would have imposed significantly higher penalties than did the Magistrate. Overall, the head sentence is very lenient. A full 30% discount was given. The non-parole period of 12 months relative to the head sentence of 40 months is only 30%; that is low and his Honour’s description of it as being very merciful is apt. I would have imposed a significantly higher period. The sentence imposed is patently not manifestly excessive. I reject Ground 2 of appeal.
Ground 1(a) of appeal: 5½ months was sufficient custodial punishment
As I understand the argument, it is that the Magistrate failed to refer expressly to the undoubted fact that the appellant had at the time of sentencing been in custody for about 5½ months and that, in circumstances where he had not previously served a custodial sentence, that period should have been considered a sufficient period of imprisonment, such that a non-custodial sentence of either a suspended sentence or home detention should have been imposed.
I reject that argument. I consider that the Magistrate was correct in coming to the view that first, no sentence other than a custodial sentence was appropriate and secondly, that no length of sentence shorter than the period of two years and four months was appropriate. The Magistrate was well aware that the appellant had thus far served the period of 5½ months imprisonment (indeed, he correctly back-dated the sentence so that there was no double punishment). His Honour was entitled to take the view that the period in custody of 5½ months was so short that the serving of it did not amount to either good reason to suspend a custodial sentence, or sufficient reason to impose a sentence of home detention. Put another way, the Magistrate was well within the ambit of his sentencing discretion in deciding that, in all of the circumstances of this case, the offending was just too serious for either of these sentencing options to be adopted. I reject Ground 1(a) of appeal.
Ground 1(b) of appeal: Credit for three days custody plus two months home detention
The appellant complains that the Magistrate did not mention, or take into account, either that he had spent a further period of three days in custody prior to release on home detention bail or that he had then spent a period of two months on home detention from 6 September 2019 to 6 November 2019.
As to the latter period, the degree to which a period on home detention is taken into account is very much a matter of discretion. In fact, it is not at all clear that the Magistrate did not take into account that period when fixing a low penalty of only one month’s imprisonment for two theft offences and five bail offences, bearing in mind that his Honour specifically referred to the fact that some of those breaches were of home detention bail.
But in any event, even if his Honour did not take into account either of those two periods, if one were to grant a very generous remission approaching 50% for time spent on home detention bail, the total time not taken into account here is at a maximum of about one month (including the three days in custody referred to above). If there were to be a re-sentencing, the sentence I would consider appropriate would be greater than the present sentence by significantly more than one month. Since I would not increase a sentence on a defence appeal, the appropriate order would be to dismiss the appeal.[2] I reject Ground 1(b) of appeal.
[2] See Kentwell v The Queen (2014) 252 CLR 601.
Ground 1(c) of appeal: Insufficient partial concurrency
It appears that the appellant complains that the Magistrate failed to consider partial concurrency. However, it is to be noted that in respect of the two counts of serious criminal trespass a single sentence of imprisonment was imposed to include the separate theft charges, indicating a measure of concurrency.
And further, the Magistrate imposed a single sentence of only one month’s imprisonment in relation to two additional counts of theft (which were committed on different days and in different circumstances), as well as five counts of breach of bail offences. One of those theft charges was quite serious (being the theft of a tradesman’s tools from his vehicle parked in his residential driveway to the value of $2,000) and I would have thought that that charge warranted at the least one month imprisonment by itself, which means that the other offences in effect received full concurrency.
In the circumstances of this case, there was no requirement for any further partial concurrency of sentence. It may be postulated that all of the offending was related to a drug problem, but the offending comprised quite separate episodes of violence, serious criminal trespasses and thefts. And importantly, after being apprehended and being granted bail for the first offence (which was quite a serious offence), the appellant was undeterred and all of the further substantive offences were committed while on that bail for the first offence (and later, additionally on bail for the various subsequent offences).
While in some cases of multiple offending a finding that the total sentence is manifestly excessive may lead to the inference that there should have been a degree of partial concurrency, here the total sentence is in no way excessive and no inference is to be drawn that greater partial concurrency should have been given. I reject Ground 1(c) of appeal.
I dismiss the appeal.