Karpany v The Queen

Case [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…

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Karpany v The Queen [2021] SASCA 48
Case
[2021] SASCA 48
Decision Date

CaseChat Overview and Summary

The appeal in *Karpany v The Queen* concerned the sentencing of the appellant for three distinct offences: a robbery committed in September 2019, a commercial burglary and property damage in February 2020, and a breach of bail in April 2019. The appellant had pleaded guilty to these offences. The sentencing judge imposed a sentence of five years imprisonment with a non-parole period of three years, 11 months, and 16 days, after applying reductions for early pleas.

The appeal raised two primary legal issues. Firstly, the appellant contended that the sentencing judge erred in their interpretation of the expression "so exceptional" within the context of the appellant's personal circumstances, as contemplated by s 54(2)(a) of the relevant Act. Secondly, the appellant argued that their personal circumstances were sufficiently exceptional to outweigh the criteria outlined in s 54(2)(a), thereby preventing the operation of s 54(1)(b) of the Act, which mandates a minimum sentence in certain circumstances.

The Court of Appeal considered the appellant's extensive criminal history, which commenced in his youth and included numerous property and trespass offences, as well as a long-standing issue with illicit drug use. Despite the appellant's arguments regarding the exceptional nature of his personal circumstances, the Court found no demonstrable error in the sentencing judge's approach. The Court concluded that the sentencing judge's decision was not so unreasonable or unjust as to indicate an error, even if such an error was not immediately apparent from the face of the reasoning. Consequently, the Court granted permission to appeal but ultimately dismissed the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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 The Judge was required to sentence the appellant for three separate episodes of offending. 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. 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. 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. 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 The appellant has a long criminal history, dating back to offending as a youth. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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