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:
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).
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.
The appellant appealed that decision, contending that…
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CaseChat Overview and Summary
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
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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