Karpany v The Queen

[2021] SASCA 48

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

KARPANY v THE QUEEN

[2021] SASCA 48

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Livesey)

3 June 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES

Between 2019 and 2020 the appellant committed a number of offences including robbery, aggravated serious criminal trespass, aggravated theft, property damage and breach of bail. Following early pleas of guilty, he was sentenced to five years imprisonment. He was sentenced as a serious repeat offender and accordingly, the Sentencing Judge imposed a non-parole period four-fifths of the final sentence.

The appellant appealed against the sentence on the basis that the Sentencing Judge erred in failing to find exceptional personal circumstances and that the sentencing process miscarried due to the failure of the Sentencing Judge to properly apply the discretion and set a non-parole period less than four-fifths of the head sentence.

Held (by the Court), granting permission to appeal but dismissing the appeal:

1. No error has been demonstrated in the approach of the Sentencing Judge;

2. The Sentencing Judge's decision was not so unreasonable or unjust to suggest that error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

Sentencing Act 2017 (SA) ss 22 & 54, referred to.
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; House v The King (1936) 55 CLR 499; Knight v The Queen [2021] SASCFC 12; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Norbis v Norbis (1986) 161 CLR 513; R v Kelly [2000] 1 QB 198; R v Skinner (2016) 126 SASR 120; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, considered.

KARPANY v THE QUEEN
[2021] SASCA 48

Court of Appeal – Criminal:    Kelly P, Lovell and Livesey JJA

THE COURT:

1. The appellant, while addicted to heroin and methamphetamine, committed a number of offences, including robbery and aggravated serious criminal trespass. After pleading guilty at various stages of the committal process he was sentenced in the District Court. At an Aboriginal sentencing conference he disclosed, for the first time, sexual abuse perpetrated by a priest at the boarding school he attended as a youth. Due to his criminal history, he was liable to be sentenced as a serious repeat offender pursuant to s 54 of the Sentencing Act 2017 (SA) (the Act).

2. The Sentencing Judge concluded that the appellant’s personal circumstances were not so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. Accordingly, the Sentencing Judge fixed a non-parole period of four-fifths the length of the sentence.

3. The appellant appealed that decision, contending that his personal circumstances were so exceptional that it was open to the Sentencing Judge to impose a non-parole period less than four-fifths of the length of the sentence.

4. Two issues were argued on appeal. First, when considering s 54(2)(a) of the Act, the meaning of the expression “so exceptional” in the context of the appellant’s personal circumstances. Secondly, whether the appellant’s personal circumstances were so exceptional as to outweigh the criteria set out in s 54(2)(a) and thus avoid the operation of s 54(1)(b).

   Background

5. The Judge was required to sentence the appellant for three separate episodes of offending.

6. First, on 19 September 2019, the appellant observed the victim sitting in a parked car in a car park. He incorrectly believed that the victim was acting in a negative way towards him. The appellant got into a car driven by his stepmother. She drove into the carpark and parked her vehicle across the victim’s vehicle so that he could not exit the carpark. The appellant got out of the car and approached the victim, opening the door and accusing the victim of making “gang” or “gun” gestures towards him. He used his left arm to pin the victim to his seat and threatened to bash him. He stole the victim’s mobile phone, wallet and black jacket before leaving the scene. The appellant was intoxicated, having consumed illicit drugs at the time of the offending. The victim’s mobile phone was located at the appellant’s premises on 20 September 2019 and the appellant was arrested for robbery that day.

7. The second incident occurred on 2 February 2020. The appellant, in company with an unidentified man, rammed the rear roller door of a business premises with a stolen vehicle. He entered the building and pushed over a glass cabinet as he went, causing over $7,800 in damage. The appellant stole property worth less than $20,000. The ramming of the roller door caused damage in excess of $8,000. The appellant was charged with aggravated serious criminal trespass in non-residential premises, damage property, damage building and aggravated theft.

8. The third offence relates to a breach of bail committed on 18 April 2019. The appellant tested positive for the presence of cannabis, amphetamine and methamphetamine. The bail agreement related to offending allegedly committed in late 2018, including counts which were subsequently withdrawn. In the event, little turns on this matter as the Sentencing Judge convicted the appellant but imposed no further penalty for this offence. It demonstrates, as was accepted on appeal, that the appellant has had a long-standing issue with illicit drug taking.

9. The appellant was sentenced to five years imprisonment, with a non-parole period of three years, 11 months and 16 days, following the application of the applicable sentencing reductions due to his early pleas of guilty.

   Personal circumstances

10. The appellant has a long criminal history, dating back to offending as a youth.

11. As a youth, the appellant spent time in detention for offences including three counts of aggravated serious criminal trespass in non-residential premises, three counts of larceny and one count of serious criminal trespass in non-residential premises.

12. The Sentencing Judge noted the appellant’s adult offender history as follows:

    As an adult, your offender history includes two counts of non-aggravated serious criminal trespass in non-residential premises, one count of larceny, one count of illegal use, driving while disqualified and causing bodily injury by dangerous driving in 2002 for which a head sentence of four years and 11 months imprisonment with a non-parole period of two years and two months was imposed in August 2003. It also includes multiple breaches of bail, driving offences and various street offences. It includes one count of aggravated serious criminal trespass in non-residential premises and one count of theft in 2007 for which a suspended sentence bond was imposed and it also includes one count of basic assault for offending in 2010 for which a suspended sentence bond was imposed.

    Relevantly, on 18 March 2014 you were convicted in the Magistrates Court of offences including one count of aggravated driving dangerously to escape police pursuit and sentenced to serve a term of imprisonment of six months.

    On 2 February 2016, you were convicted of multiple offences, including two counts of aggravated serious criminal trespass in a place of residence for which a head sentence of three years and five months with a non-parole period of two years was imposed.

13. As can be seen from the above history, the appellant has spent much of his adult life either in custody or on parole.

14. The Sentencing Judge held an Aboriginal sentencing conference pursuant to s 22 of the Act. The appellant also gave evidence on oath before her Honour. The Sentencing Judge noted:

    During the sentencing conference, you read a letter of apology directed to the victim of the September 2019 offending wherein you outlined your embarrassment and remorse for the offending and acknowledged that everyone has a right to feel safe when simply going about their daily lives. You spoke of your regret about the impact of the offending on your victim, being offending for which you have little explanation as your thinking and judgment was clouded by drugs. You also regret the poor example your conduct served to a younger sibling who witnessed the offending.

    You told me you understand the link between your drug use and your offending and that you use drugs to try to block out the pain relating to events from your childhood. It is clear that you will need professional support by way of counselling and therapy to address these longstanding issues and to find other coping mechanisms.

    While on remand in custody, you have been (sic) completed units of competency in a Certificate I in General Education For Adults (Introductory) and a Certificate II in Business, and an Aboriginal Men's Wellbeing Program called Our Way My Choice. You have regularly attended Narcotics Anonymous meetings, making positive contributions to that group.

    I heard your goal is to obtain skills in a trade such as tiling and to obtain various tickets and licences to enable you to seek work in the civil construction industry upon your release, preferably away from Adelaide and away from negative influences. You commenced TAFE studies to prepare you for work in the construction industry in 2003 and during 2003, 2004 and 2005, you undertook numerous components of a Certificate I and II in Vocational Education, Carpentry, Furnishing and Joinery. You passed a number of modules but unfortunately are yet to utilise those skills.

    You understand that you will need support upon your release and it is hoped that you will have the support of mentors you have met through your involvement with Narcotics Anonymous in prison.

15. Importantly, during the sentencing conference the appellant disclosed, for the first time, that he had been subjected to sexual abuse when a youth. When the appellant was aged about 12 or 13 and in Year 8, he spent two terms at a Catholic boarding school in Adelaide. While there, he was subjected to abuse by a priest and provided with illicit drugs. This led to the appellant developing, or at least significantly contributed to the appellant developing, a full-blown addiction to heroin and then methamphetamine. The appellant gave evidence on oath that he used these drugs to escape the memories of what had occurred to him as a youth. The appellant said that he had not sought any treatment for this trauma and had only been able to express it now, after years of keeping it private. This was due to embarrassment and uncertainty as to whom he could talk.

16. The Sentencing Judge accepted the appellant’s evidence. Indeed, the Sentencing Judge stated that it must have been “extremely difficult for [the appellant] to open up about these experiences in court and I commend [him] for [his] bravery.” She also noted that the appellant had taken “the first and hardest step towards seeking appropriate help and support to work through this long-standing trauma.”

    Grounds of appeal

17. The appellant appealed on two grounds:

    1. The Sentencing Judge erred in finding that the institutional sexual abuse suffered by the Appellant was insufficient to constitute exceptional circumstances; and

    2.The sentencing process miscarried by reason of the failure of the Sentencing Judge to properly or adequately consider or apply the discretion in s 54(2) of the Act to set a non-parole period less than four-fifths of the head sentence.

    Legal principles

18. Section 54 of the Act relevantly states:

    54—Sentencing of serious repeat offenders

    (1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):

    (a)     …

    (b)     any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.

    (2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—

    (a)     the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and

    (b)     it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.

19. There was no dispute before the Sentencing Judge, or on appeal, that the appellant, due to his prior offending, fell within the definition of a serious repeat offender. To avoid the consequences of s 54(1)(b) the appellant had to satisfy the conditions specified in ss 54(2)(a) and (b).

20. Complying with s 54(2) requires the court to consider exercising a discretion. That is, it calls for an overall assessment having regard to the factors mentioned in the section, each of which in turn calls for an assessment of particular circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion.[1] That is, no one consideration and no combination of considerations is necessarily determinative of the result. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made.[2]

    [1]     Norbis v Norbis (1986) 161 CLR 513 at 518.

    [2]    Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19] per Gleeson CJ, Gaudron and Hayne JJ; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.

21. Thus, on appellate review of a decision made pursuant to s 54(2), the principles enunciated in House v The King[3] are applicable. A challenge to the Sentencing Judge’s discretionary decision can only succeed if the Judge:[4]

    (a) made an error of legal principle;

    (b) made a material error of fact;

    (c) took into account some irrelevant matter;

    (d) failed to take into account, or gave insufficient weight to (exceptional) some relevant matter; or

    (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

    [3] (1936) 55 CLR 499.

    [4]    Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]; House v The King (1936) 55 CLR 499 at 505.

22. Members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted to a failure to properly exercise the discretion actually entrusted to the sentencing court.[5]

    [5]     Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [37].

23. It is important to note that the test is not simply a matter of a defendant establishing exceptional personal circumstances. What the sentencing discretion involves here is a determination of whether the personal circumstances of the appellant were “so exceptional” as to “outweigh the paramount consideration of protecting the safety of the community…and personal and general deterrence.”

24. The meaning of the expression “so exceptional” as stated in s 54(2)(a) was considered recently in Knight v The Queen.[6] The content of the expression must be informed by its relevant statutory context, and in particular the objects of the provision in question and the mischief to which it was directed.[7] As discussed in Knight, the adverb “so” does modify the adjective “exceptional”. In context it means exceptional, not in an abstract way, but in the sense that it outweighs paramountcy of the sentencing objectives.

    [6] [2021] SASCFC 12 (“Knight”).

    [7]     R v Skinner (2016) 126 SASR 120 at [94].

25. Lord Bingham, although in a different legislative context, considered the concept of “exceptional circumstances”. He said in R v Kelly:[8]

    It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

    [8] [2000] 1 QB 198 at 208.

26. Exceptional circumstances can include a single exceptional factor, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. The exceptional circumstances must be personal to the offender. Exceptional circumstances may emerge from qualitative considerations (in the sense of circumstances of the type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).[9]

    [9]     Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66].

27. However, as Doyle J stated in R v Skinner,[10] the court must be careful not to set the test so high that it becomes near impossible to satisfy. It is neither possible nor desirable to be more prescriptive as to what will be required to establish the test contained in s 54(2)(a). It depends upon the facts of the particular case. Self-evidently, reaching a decision involves considering, not only those factors said to be exceptional personal circumstances, but also the nature and extent of the appellant’s previous offending in addition to a consideration of the offending for which he is to be sentenced. These factors inform what weight should be given to the criteria of protecting the safety of the community and personal and general deterrence. As Livesey J stated in Knight: [11]

    It follows that the proved personal circumstances must permit the conclusion that the paramount consideration of community safety and general deterrence under s 54(2)(a) is outweighed by personal circumstances which are out of the ordinary course, or unusual or uncommon, though they need not be unique, unprecedented or very rare, though they cannot be regularly, routinely or normally encountered.

    [10] (2016) 126 SASR 120 at [95].

    [11] [2021] SASCFC 12 at [62].

    Appellant’s submissions

28. Counsel for the appellant, Mr Lang, relied on the submissions made by counsel before the Sentencing Judge. He submitted that the appalling mistreatment the appellant experienced in being repeatedly abused by a trusted person in a position of authority when he was a young teenager was such as to render his personal circumstances exceptional within the meaning of the section. Mr Lang further submitted that the appellant was taking active steps towards rehabilitation, as evidenced by his involvement in Narcotics Anonymous and the studies he has undertaken in prison. Further, in speaking up about the abuse for the first time, the appellant had taken the most significant step towards his rehabilitation.

29. Mr Lang submitted that the Sentencing Judge erred in dismissing the experiences of the appellant as “falling within the general ambit of those who have experienced abusive and traumatic upbringings”. He submitted that institutional sexual predation is now recognised as a widespread historical and ongoing problem. The significance of the sexual abuse here is the link between the appellant’s drug use and pattern of criminality and recidivism. Mr Lang submitted that there was a clear impetus for rehabilitative measures to be favoured over punitive deterrence particularly given the appellant now acknowledges insight in relation to the connection between the abuse he suffered and his ongoing criminal activity.

1. Mr Lang submitted that the Sentencing judge erred in not finding that the appellant’s personal circumstances were exceptional.

2. In the alternative, Mr Lang submitted that the Sentencing Judge erred in the exercise of her discretion in that it was unreasonable to reject the appellant’s contention that his circumstances were so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence.

   Respondent’s submissions

3. Ms Townsend, counsel for the respondent, highlighted the serious nature of the offending for which the Sentencing Judge had to sentence the appellant. The robbery was a serious matter involving actual violence against the victim. Further, during the commission of the serious trespass in the business premises the appellant caused significant damage in addition to committing the theft. That offending occurred against a background of the appellant’s significant and long-standing antecedent criminal history.

4. The Sentencing Judge, she submitted, comprehensively set out the reasons as to why she exercised the discretion against the appellant. The Sentencing Judge analysed the legislative framework, summarised the evidence that was given and considered the relevant case law in relation to the meaning of the expression “so exceptional”. She had regard to the submissions of both the appellant and the respondent. Ms Townsend submitted that the Sentencing Judge had turned her mind to all relevant considerations and that the conclusion in relation to the operation of s 54(2) was not attended by any error.

   Discussion

5. It is convenient to deal with both grounds of appeal together. The Sentencing Judge, in her remarks, carefully considered the matters set out in s 54(2). She accepted the evidence of the appellant as to how and when the sexual abuse occurred.

6. As discussed, counsel for the prosecution did not submit that the appellant’s circumstances were not exceptional. The prosecution submission was that the appellant’s circumstances were not so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence.

7. When considering the exercise of the discretion the Sentencing Judge stated:

   The impact of the abuse you suffered as a young teenager is something that cannot be measured and I do not doubt its influence on the course your life has taken to date or its contribution to your drug addiction, and to what has been a recurring and similar pattern of behaviour and offending from your mid-teens and throughout your adult life. Sadly, many of those who become involved in the criminal justice system have experienced abusive and traumatic upbringings. I hope your courage and talking openly about your experiences enables you to take the next step of seeking help by way of counselling and therapy.

   In Karnage Nicholson J emphasised the necessity for the criteria in both limbs of s 54(2) to be satisfied.

   This was very serious offending against a background of a lengthy history of similar offending.

   The offending in September 2019 was against an innocent bystander and must have been particularly traumatic for him. The offending in February 2020 resulted in many thousands of dollars worth of damage and was aggravated as it was committed while you were on bail. As outlined earlier, your offender history includes numerous prior offences of breaking and entering either private homes or businesses. As such, after careful consideration in this instance, I am not satisfied that your personal circumstances are such that they counter the tipping of the scales, using the terminology in Willett.

8. We reject the appellant’s submission that the Sentencing Judge erred in failing to find “exceptional circumstances”. Section 54(2) did not require the Sentencing Judge to make a separate finding relating only to the appellant’s personal circumstances. The task to be undertaken, as the Sentencing Judge recognised, was to decide the question of whether the appellant’s personal circumstances were so exceptional as to outweigh the criteria set out in s 54(2)(a).

9. The Sentencing Judge correctly approached the task in not only assessing the appellant’s personal circumstances, but also by considering his background and current offending. Clearly the Sentencing Judge had sympathy for the appellant’s position. It can be seen from the Sentencing Judge’s remarks that she understood the significance of the sexual abuse on the appellant’s behaviour. The Sentencing Judge did not doubt that the abuse significantly contributed to the appellant’s drug addiction and the “recurring and similar pattern of behaviour and offending” commencing in the appellant’s mid-teens and then throughout his adult life. She accepted that addressing the trauma of the sexual abuse would go a long way to assisting in the rehabilitation of the appellant. Contrary to the appellant’s submissions, the Sentencing Judge did not find that his personal circumstances were not exceptional. Although it was not necessary for her to make a finding, the tenor of the Sentencing Judge’s remarks suggest she did consider that the appellant’s personal circumstances, taken alone, could be regarded as exceptional.

10. The Sentencing Judge, having carefully considered all the factors mentioned above when reaching her decision, concluded that the appellant’s personal circumstances, even if they could be described as exceptional, did not outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. Further, she was not satisfied, pursuant to

    
    

    s 54(2)(b), that in all the circumstances, it was not appropriate that the appellant be sentenced as a serious repeat offender. Thus, the Sentencing Judge refused to declare that s 54(1)(b) of the Act did not apply to the appellant.

11. The appellant’s background, as recognised by the Sentencing Judge, is deserving of sympathy. The appellant’s acknowledgement of the significance of the sexual abuse in contributing to his descent into drugs and criminal behaviour is clearly an important matter. The Sentencing Judge gave weight to these factors when considering the test pursuant to ss 54(2)(a) and (b). However, the Sentencing Judge decided against exercising the discretion in the appellant’s favour, a decision which was open to her. No error has been demonstrated in the approach of the Sentencing Judge. Nor could it be said that the Sentencing Judge’s decision was so unreasonable or unjust as to suggest that error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

12. We grant permission to appeal but dismiss the appeal.