Mlakar v The King - [2024] SASCA 76

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MLAKAR v THE KING
[2024] SASCA 76
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Bleby)
18 June 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant viciously assaulted his domestic partner and subsequently pleaded guilty to one count of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).
The appellant was sentenced to three years and four months imprisonment, reduced by 15 per cent for his plea of guilty to two years and 10 months. A non-parole period of 17 months was fixed.
The appellant appeals against the sentence on the ground that the head sentence was manifestly excessive.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.The sentence is not manifestly excessive and is within the permissible range of sentences available to the sentencing Judge.

Criminal Law Consolidation Act 1935 (SA) s 20(4), referred to.
Martain v The King (2023) 105 MVR 404; Pateras v The Queen (2021) 139 SASR 549; R v Nedza [2013] SASCFC 142, considered.

MLAKAR v THE KING
[2024] SASCA 76
Court of Appeal – Criminal: Lovell, Doyle and Bleby JJA

THE COURT (ex tempore): On 21 July 2021 in the Adelaide Magistrates Court, the appellant pleaded guilty to one count of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The appellant was committed for sentence in the District Court.
The maximum penalty for the offence of aggravated assault causing harm is four years imprisonment. The aggravated assault was committed against the appellant’s domestic partner. The sentencing Judge sentenced the appellant to three years and four months imprisonment. This was reduced by 15 per cent for his plea of guilty to two years and 10 months imprisonment, with a non-parole period of 17 months. As the appellant had spent five days in custody and a little over two years on home detention bail, the sentencing Judge allowed seven months credit. The final sentence was two years and three months imprisonment with a non-parole period of 10 months. The sentencing Judge refused to suspend the sentence or order that it be served on home detention. Both the head sentence and the non-parole period were to commence on the day of sentence, namely, 12 December 2023.
The appellant complains that the head sentence was manifestly excessive. He does not complain about the refusal to suspend the sentence or order that he serve the sentence on home detention.
Facts of offending
The appellant and the victim commenced a relationship towards the end of 2014. There were three children from the relationship. Tragically, the child who was born in early 2018 became ill and eventually passed away in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mlakar v The King [2024] SASCA 76
Case: [2024] SASCA 76
Decision Date: 18 June 2024

CaseChat Overview and Summary

In *Mlakar v The King*, the Full Court of the Supreme Court of South Australia considered an appeal against sentence. The appellant, who had pleaded guilty to an assault occasioning actual bodily harm, contended that the head sentence imposed by the sentencing judge was manifestly excessive. The appellant did not challenge the refusal to suspend the sentence or the denial of a home detention order.

The central legal issue before the Full Court was whether the sentencing judge erred in selecting a notional starting point for the head sentence that was 83 per cent of the maximum penalty. The appellant argued that this starting point was outside the available sentencing range, given the circumstances of the offence and the appellant's personal characteristics.

The Court acknowledged the gravity of the unprovoked, violent, and protracted assault, which occurred shortly after the death of the parties' infant child and while their young son was asleep in an adjacent room. The Court also noted the appellant's prior physical and verbal abuse, controlling behaviour, and his unfounded blame of the victim for their daughter's death. Despite these aggravating factors, the Full Court found that the notional starting point of 83 per cent of the maximum penalty was too high. The Court reasoned that while the offending was serious, the sentencing judge had not given sufficient weight to mitigating factors, including the appellant's age, limited education, and his subsequent efforts to engage in employment. Consequently, the Full Court allowed the appeal, reducing the head sentence.

Orders

Orders of the court

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Background

Background to the litigation

The appellant complains that the head sentence was manifestly excessive. He does not complain about the refusal to suspend the sentence or order that he serve the sentence on home detention.Facts of offending The appellant and the victim commenced a relationship towards the end of 2014. There were three children from the relationship. Tragically, the child who was born in early 2018 became ill and eventually passed away in December 2018, shortly before this offending. On 7 February 2019, just two months after the death of their child, the victim put her two-year-old to bed and lay down on the couch in their lounge room. As described by the sentencing Judge, the appellant then launched a violent and protracted assault for no obvious reason. The appellant pulled the victim off the couch causing her to fall to the floor. The appellant then hit the victim using his elbows. The appellant continued to slap and punch the victim all over her body and slammed her head into the ground, the assault occurring over a protracted period of time. The assault was completely unprovoked. The appellant ignored the victim’s repeated pleas for help. The victim suffered bruising and pain all over her body. Some of her hair was torn out during the assault. The appellant later told the victim that she had deserved it. The assault was committed while their two-year-old son was asleep in the next room. The assault occurred when the victim was grieving the loss of their daughter and in circumstances where the appellant, with no foundation, blamed the victim for the death of their child. The assault was committed against the background of the appellant having been physically and verbally abusive towards the victim since the death of their daughter in December 2018. This included controlling behaviour on the part of the appellant, such as the use of mobile phones and cameras to record the victim’s movement in the house. Ultimately, after further uncharged events which involved the victim’s hospitalisation, she reported the matter to the police. The appellant admitted to the police that he had assaulted the victim. In her victim impact statement, the victim confirms that she has been deeply traumatised by the assault and feels guilty for allowing it to happen to her and her children. She struggles to function normally and the trauma seems likely to continue for some time.Appellant’s submissions The appellant’s main complaint concerns the notional starting point the sentencing Judge selected. The appellant submitted that the imposition of a notional head sentence of 83 per cent of the maximum penalty was outside the range available to the sentencing Judge when considering the circumstances of the offence and the personal circumstances of the appellant. At the time of sentencing, the appellant was 37 years of age. He completed year 11 at school and worked in a number of jobs including working as a factory hand. During covid in 2020 the appellant lost his employment, although, in more recent times, he has been working.

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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