R v CEKANAUSKAS

[2024] SASCA 154

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v CEKANAUSKAS

[2024] SASCA 154

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice B Doyle)

24 December 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

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

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE

The Director of Public Prosecutions seeks permission to appeal against the sentence imposed upon the respondent.

The respondent was sentenced for several offences, including offences of aggravated assault causing harm and aggravated robbery committed on the same occasion and involving the same victim. The assault was aggravated because it involved the use of a weapon (a multitool), and the robbery was aggravated because it was committed in company with another. 

In sentencing the respondent, the sentencing judge used a starting point of 2 years and 8 months imprisonment for the offences of aggravated assault causing harm and aggravated robbery. The respondent was also sentenced to 9 months imprisonment for an offence of threatening to cause harm.  After reductions for the respondent’s pleas of guilty, and for time served in custody and on home detention bail, the judge ultimately imposed a total sentence of imprisonment for 2 years, with a non-parole period of 8 months.

The Director seeks permission to appeal on the ground that the sentence imposed was manifestly inadequate, having regard to the sentencing standard for armed robberies in R v Place, and the sentences suggested for basic robberies in cases such as R v Gannon and R v Brant. The Director contends that intervention is required in order to maintain sentencing standards, and because the sentence was so low that to allow it to stand would undermine public confidence in the administration of justice.

Held, per the Court, refusing permission to appeal:

1.The starting point of 2 years 8 months for the offences of aggravated assault causing harm and aggravated robbery was too low, resulting in an overall sentence that was manifestly inadequate;

2.Granting permission to appeal would expose the respondent to considerable hardship due to her difficult personal background and circumstances; the imminence of her eligibility for parole; and the risk that resentencing the respondent would disturb the parity between her sentence and that of her co-offender;

3.Although the sentence was manifestly inadequate, it is not clear that the sentence was so low as to undermine public confidence in the administration of justice, or that intervention is required in order to maintain adequate sentencing standards; and

4.In these circumstances, after weighing considerations of double jeopardy against the public interest in appellate intervention, this is not an appropriate case in which to grant the Director permission to appeal.

Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 20(4)(c), 19(2)(a), 137(1)(b); Sentencing Act 2017 (SA) s…