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 76Court 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…
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CaseChat Overview and Summary
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.
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