Kuchar v The Queen

[2019] SASCFC 127

Supreme Court of South Australia

(Court of Criminal Appeal)

KUCHAR v THE QUEEN

[2019] SASCFC 127

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Auxiliary Justice David)

17 October 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence imposed in the District Court.

After being found guilty by a jury the appellant was sentenced to a term of six years imprisonment with a non-parole period of two and a half years for the offence of arson. The offending concerned the destruction by fire of an investment property owned by the appellant and his wife at Holden Hill. The offence occurred on 23 October 2011. The appellant’s wife was jointly charged with the appellant for this offending. She too was sentenced to six years imprisonment with a non-parole period of two and a half years but the sentencing judge ordered that sentence be served on home detention pursuant to s 33B of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act).

There are three grounds of appeal for which permission was granted:

1.  The learned sentencing judge erred in his approach to the significance of the appellant’s mental health to general and specific deterrence, in particular, in the fixing of the head sentence, by confining his consideration to its role in the offending (ground 2);

2.  The head sentence and non-parole period are manifestly excessive (ground 3); and

3.  The learned sentencing judge erred in failing to have any or adequate regard to the parity principle (ground 5).

Held, per Stanley J (Kelly J and David AJ agreeing):

1.  The learned sentencing judge did not err in his approach to the significance of the appellant’s mental health to general and specific deterrence in the fixing of the head sentence.

2.  The head sentence and non-parole period are not manifestly excessive.

3.  The learned sentencing judge did not err by failing to have regard to the parity principle.

4.  Appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(l), s 10(2)(d), s 18A, s 33BB, referred to.
R v Jongewaard (2009) 266 LSJS 283, applied.
R v Kreutzer (2013) 118 SASR 211; Muldrock v The Queen (2011) 244 CLR 120; R v Tsiaras [1996] 1 VR 398; R v Verdins [2007] 16 VR 269; R v Yaldiz [1998] 2 VR 376; R v Engert (1995) 84 A Crim R 67; Veen v The Queen (No. 2) (1988) 164 CLR 465; R v Smith [1997] 44 SASR 587; R v Boyes (2004) 8 VR 230; R v Scuteri [2018] SASCFC 103; R v Lekaj (1997) 92 A Crim R 325; R v Franceschini [2015] SASCFC 116; Green v The Queen (2011) 244 CLR 462; Lowe v The…