R v Cekic - [2016] SASCFC 26

Supreme Court of South Australia
(Court of Criminal Appeal)
R v CEKIC; R v CIANTAR; R v DETTMAN; R v NIEMANN; R v PAUNOVIC
[2016] SASCFC 26
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Acting Justice David)
22 March 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
Appeal against sentence - five appellants charged with aggravated causing serious harm with intent to cause serious harm and aggravated theft - appellants tried by Judge sitting without a jury - appellants convicted for the main charge and sentenced to various terms of imprisonment - whether Judge erred in application of sentencing principles - whether sentences imposed were manifestly excessive.
Held per Vanstone J (Kelly J and David AJ agreeing): Appeal dismissed. There were no errors in the Judge's approach. The sentences imposed were not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(ga)(i), s 23(1); Criminal Law (Sentencing) Act 1988 (SA) s 20B(1), s 20B(3)(a), s 20BA(1), referred to.
Kumar v The Queen [2013] VSCA 191; R v Burner [2015] SASCFC 133; R v Clancy [2013] SASCFC 63; R v De Simoni (1981) 147 CLR 383; R v Harkin (2011) 109 SASR 334; R v Koch [2015] SASCFC 31; R v McNamara (2009) 105 SASR 38; R v Perdikoyiannis [2011] SASCFC 82, considered.

R v CEKIC; R v CIANTAR; R v DETTMAN; R v NIEMANN; R v PAUNOVIC
[2016] SASCFC 26
Court of Criminal Appeal: Vanstone, Kelly JJ and David AJ

VANSTONE J: After a trial before the Chief Justice sitting without a jury, Bozidar Cekic, Dean Richard Ciantar, Corey Matthew Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic were convicted for aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA). It was found proved that on 13 February 2013 the five men were part of a joint enterprise to attack Charles Bonnici, causing him serious harm. On 31 July 2015 the prisoners were sentenced to various terms. Each now appeals against his sentence. The maximum penalty for the offence is 25 years’ imprisonment.
Background
At the time of the incident, the appellants and the victim were affiliated with the Finks motorcycle gang. Cekic, Dettman, Paunovic and the victim were members of the gang and Niemann and Ciantar were nominees. It was the prosecution case that the appellants formed a plan to attack the victim. On the day of the incident, the appellants arrived at the Finks’ north clubhouse ahead of the victim and waited for him to arrive. When he arrived, Cekic, Dettman and Paunovic entered the clubhouse with the victim. Niemann and Ciantar remained outside. The Judge found that Cekic, Dettman and Paunovic, either separately or together, assaulted the victim while Niemann and Ciantar acted as lookouts outside.
As a result of the attack, the victim suffered collapsed lungs, rib fractures, a fractured fibula, facial lacerations and a serious head injury. He suffered permanent damage to his brain function.
In sentencing the appellants, the Judge did not differentiate between the culpability of Cekic, Dettman and Paunovic. Each was found to have personally struck the victim or encouraged it at close quarters. Ciantar and Niemann were found to be less culpable, due to their limited roles as lookouts.
The Judge imposed on Cekic a head sentence of 10 years and four months’ imprisonment. Due to two admitted breaches of bonds associated with suspended sentences, the total sentence became 11 years, 11 months and 28 days, with a non‑parole period of seven years and 10 months. In fixing this sentence, the Judge weighed Cekic’s relative youth, personal circumstances and his “reasonable prospects for rehabilitation” against his culpability in this offending, his involvement with an outlaw motorcycle gang, his criminal history, his lack of contrition and the need for specific deterrence.
Ciantar received a head sentence of nine years’ imprisonment and a non‑parole period of six years and two months. The Judge noted Ciantar’s late arrival and limited role in arranging and carrying out the attack, his subservient status as a nominee in the Finks and his youth. The Judge balanced these mitigating factors with Ciantar’s serious criminal history and limited prospects of rehabilitation.
Dettman received a head sentence of 15 years’ imprisonment and a non‑parole period of 12 years. The Judge emphasised Dettman’s extensive history of violent offending. Because of that record, the Judge was required, by virtue of s 20B(3)(a) of the Criminal Law (Sentencing) Act 1988 (SA), to consider whether to declare Dettman a serious repeat offender. The Judge made such a declaration, noting the substantial danger Dettman posed to the community. Because of this declaration, the Judge increased the sentence from 12 years to 15 years. The Judge said that Dettman had “no realistic prospect of rehabilitating himself”, and “a period of preventative detention, over and above the period of imprisonment which a proportionate sentence would give is necessary in order to protect the community.”
Niemann received a head sentence of seven years and 10 months’ imprisonment with a non-parole period of four years and nine months. The Judge reached this figure by weighing Niemann’s limited role in the offending, positive personal references, good prospects for rehabilitation, previous compliance with home detention conditions and his less serious criminal history.
Paunovic received a head sentence of 12 years’ imprisonment and a non‑parole period of eight years and six months. The Judge considered that Paunovic had good prospects of rehabilitation through his strong family relationships, but emphasised his culpability in the offence and his serious criminal history. At the date of the offence, Paunovic had two years, eight months and 26 days in unexpired parole. The Judge was required to order that this be served cumulatively upon the term imposed for this offence.
Arguments on appeal of the appellant Cekic
The appellant Cekic took three grounds of appeal. First he contended that he was sentenced on the basis of a circumstance of aggravation which had earlier been found by the Judge not to have been proved.
As discussed, the charge against the appellants was styled “aggravated causing serious harm with intent to cause serious harm”, an offence against s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The particulars alleged three circumstances of aggravation, being that the appellants committed the offence in company, that they used offensive weapons, and that they committed the offence for the benefit of two or more members of a criminal organisation, or at the direction of, or in association with a criminal organisation, using the wording of s 5AA(1)(ga)(i) CLCA.
The proof of any one of those circumstances rendered the offence an aggravated offence, attracting a maximum term of imprisonment of 25 years: s 23(1) CLCA. The Judge found proved only the first two circumstances. In finding the appellants guilty the Judge said this:
228Accordingly, I cannot be satisfied beyond reasonable doubt that the decision to meet and the subsequent assault on Mr Bonnici were at the direction of, or in association with, a criminal organisation. There may not have been a resolution, formal or otherwise, of the Finks, as an organisation, to beat Mr Bonnici. Personal hostility might also have been the reason. Similarly, even though I think it probable that the accused believed that the punishment of Mr Bonnici was in the interests of Finks as an organisation, I am not satisfied beyond reasonable doubt that the assault was committed to benefit any of the accused.
...
229Having rejected the fourth [sic] circumstance of aggravation, I indicate that I put aside the evidence of Detective McManus as to the criminal activities and discreditable conduct of the Finks members. I rely only on those parts of his statement describing the roles of officers of the Finks, the distinction between members and nominees, the conduct of meetings, the ethos of loyalty and the reluctance to cooperate with law enforcement agencies. I also put to one side the evidence of the fortifications of the clubhouses and the weapons found there.
When it came to sentencing, the Judge said this:
Even though I cannot be satisfied beyond reasonable doubt of the precise reasons for the assault, I am satisfied beyond reasonable doubt that it arose out of your association with the Finks Motorcycle Gang. In the reasons which I have published I discuss the evidence of your membership of the Finks Motorcycle Gang and the nature of that outlaw group.
It is argued on behalf of Cekic that these findings are irreconcilable. It is put that, having failed to find proved the third circumstance of aggravation, the Judge should not have then found that the offence arose out of the association with the Finks.
Niemann, Ciantar and Paunovic adopted this argument.
It is further complained that the sentence imposed on Cekic was informed by acceptance of his previous bad character, which was based (inappropriately) on evidence of his affiliations with the Finks and upon the bad character of his co-offenders. In his remarks on sentence the Judge noted – based on the evidence of Detective Senior Sergeant McManus – that the common characteristics of clubs such as the Finks included a culture of violence, demonstrated loyalty to the motorcycle gang and its members, disregard for social norms and the law, practices of intimidation towards the community and police and a high percentage of members having histories of serious criminal offending. It was argued that, in taking these matters into account, regard was necessarily and impermissibly had to the actions and criminal history of other persons.
Finally, it was argued that the sentence was manifestly excessive having regard to the circumstances of the offence. It was submitted that the period during which injuries were inflicted was brief and that the victim was neither vulnerable, infirm, nor an innocent member of the public. It was not said to be part of a course of conduct. The only weapons used were those which were readily available. These circumstances put the penalty imposed out of step with other comparable cases. Reference was made to R v McNamara (2009) 105 SASR 38 per Vanstone J at [32] and R v Harkin (2011) 109 SASR 334 per Gray and Sulan JJ at [38] and White J at [98]. In addition, counsel referred to Kumar v The Queen [2013] VSCA 191 where the Victorian Court of Criminal Appeal undertook a survey of penalties for a similar offence – albeit with a slightly lower maximum penalty – demonstrating a substantially lower “tariff” than indicated by the sentences under appeal.
Arguments on appeal of the appellant Ciantar
Counsel for Ciantar, Mr H Barklay, argued only one ground, namely that the sentence imposed was manifestly excessive.
Mr Barklay submitted that Ciantar was only 22 years of age at the time of the offence and that his connection with the offence and his role in it were more fleeting and more limited than those of the three offenders who went inside the north clubhouse where the offence occurred. It was put that Ciantar was found to be merely a lookout and that was consistent with his role at that time as a nominee. Further, he was not present at the central clubrooms when the other offenders had earlier attended and, presumably, planned the event. He arrived at the north clubrooms after the others and alone. Having learned of the planned offence shortly before it occurred, he had less time to reflect upon the seriousness of taking part in it.
Mr Barklay acknowledged that the Judge had taken account of these matters, but argued that giving them appropriate weight would have led to a head sentence much lower than the nine years imposed.
Mr Barklay argued that Ciantar had taken significant steps along the path towards rehabilitation. Material from staff of the Correctional Education Unit at the Adelaide Remand Centre was tendered before the Judge in support of that contention.
Arguments on appeal of the appellant Dettman
Counsel for Dettman argued solely that the sentence was manifestly excessive. In essence the complaint was that the Judge nominated a head sentence of 12 years as a proportionate sentence and then, having declared Dettman to be a serious repeat offender, increased the sentence by three years to 15 years. It was argued that by approaching the sentence in this way the Judge had twice taken into account Dettman’s criminal antecedents; first in formulating a sentence of 12 years and then in making the relevant declaration and increasing the sentence. The sentencing Judge said this:
If I were to impose a proportionate sentence I would fix it at 12 years. It is not possible to predict with great certainty for how much longer than 12 years it is necessary to detain Mr Dettman in order to protect the community. I have concluded that having regard to his antecedents and the nature of this offence a 25 per cent increase to 15 years appears to be necessary. On his release on parole having served the mandatory four-fifths of that head sentence Mr Dettman will be 53 years of age. At that age and after being separated from his criminal associates for such a long period I expect that the risk of serious repeat offending will have substantially reduced. I impose a sentence of 15 years. I fix a non‑parole period of 12 years. The sentence is to commence on 23 April 2013.
A serious repeat offender declaration is made under s 20B(1) of the Criminal Law (Sentencing) Act 1988 (SA). A person is liable to be declared a serious repeat offender if any one of three conditions apply. The conditions relate to occasions of committing an offence to which the division applies or refers. In this instance the declaration was made on the basis of s 20B(1)(a)(i) which refers to the commission on at least three separate occasions of an offence to which this division applies. Upon appeal no complaint is made about the Judge’s decision to make the declaration. Rather, its impact on the sentence is the subject of complaint. Once a declaration is made, then s 20BA applies to the sentencing of a person so declared. The court sentencing the person is not bound to ensure that the sentence imposed is proportional to the offence: s 20BA(1)(a). As well, any non-parole period fixed must be at least four-fifths of the length of the sentence: s 20BA(1)(b).
Arguments on appeal of the appellant Niemann
In support of Niemann’s first ground of appeal, his counsel put an argument which echoed that put by Cekic, to the effect that Niemann was sentenced on the basis of his association with an outlaw gang when the third circumstance of aggravation had not been found to be proved. It was said that such an approach was inconsistent with the principle in R v De Simoni (1981) 147 CLR 383.
Counsel also argued that the head sentence and non-parole period were manifestly excessive having regard to the fact that, like Ciantar, Niemann stayed outside the north clubrooms and was found to be a lookout. It was suggested that, at the time of the offence, he had only been a nominee of the Finks for four months and that he had no significant criminal history. He had never been in prison. It was put that being a nominee he had merely agreed to go along with the plan and was not part of the decision-making in relation to it. It was put that this was a matter of inference from his status in the club. It was said that Niemann had been a promising boxer and had excellent prospects of rehabilitation. He did not drink liquor or take drugs and was concerned to lead a healthy lifestyle.
Counsel put that the tariff for an offence such as this was about seven to 10 years’ imprisonment. Having regard to Niemann’s personal circumstances and his role in the offence, the sentence of eight years was excessive. In addition, it was put on Niemann’s behalf that the sentence imposed was unreasonably high when compared with the sentences imposed upon Paunovic and Cekic, who were much more involved in the commission of the offence. Too little weight had been given to the matters which mitigated Niemann’s offending.
Arguments on appeal of the appellant Paunovic
Counsel for Paunovic argued only that the sentence was manifestly excessive. Counsel adopted the argument put forward for Cekic and Niemann that the unproved circumstance of aggravation had been brought to account in fixing sentence. He further adopted the argument on behalf of Niemann regarding the suggested available range for a crime such as this and he suggested that the starting point for Paunovic’s sentence was outside that range. Counsel acknowledged that Paunovic had a long record of prior convictions, as well as a period of unexpired parole to be added to the sentence imposed. In terms of the relevant range of available starting points, counsel referred to R v Perdikoyiannis [2011] SASCFC 82, R v Clancy [2013] SASCFC 63, R v Koch [2015] SASCFC 31 and R v Burner [2015] SASCFC 133, in which ranges of seven to 10 years had been considered to be available for an offence against s 23(1) of the CLCA.
Analysis
I will deal first with the argument that the finding that the assault arose out of the appellants’ association with the Finks was inconsistent with the failure to find proved the third circumstance of aggravation.
It is a common law principle that a person may only be sentenced for that for which he has been convicted: R v De Simoni (1981) 147 CLR 383. In my view, this principle has not been offended in the sentencing. To say that the assault arose out of the appellants’ association with the Finks motorcycle gang is not to suggest that the offending occurred for the benefit of, at the direction of, or in association with, a criminal organisation. The Judge was merely outlining the factual background of the offence.
Next, I shall consider the submission made by counsel for Cekic that the Judge impermissibly had regard to his membership with the Finks motorcycle gang and the bad character of his co-offenders. As discussed, it is appropriate for the Judge to have regard to the factual background of the offending. Here, that included the appellants’ association with an outlaw motorcycle gang and its members. Identification with, and loyalty to, a violent criminal organisation is highly relevant to the fixing of an appropriate sentence, because it affects considerations of culpability, general and specific deterrence, punishment and rehabilitation. Indeed, the Judge in sentencing remarked:
Of course it is important to deter offences of serious violence by whomsoever they are committed. However in sentencing for offences of serious violence committed by offenders who are associated with outlaw gangs the element of general deterrence assumes greater relative importance because it is necessary to counter the violent culture of those gangs.
With respect, I agree with the Judge’s statement. Cekic’s membership of, and identification with, the Finks motorcycle gang speaks to his character, and more specifically to the likelihood of his reoffending and the prospects of his rehabilitation.
I turn to Niemann’s contention that his sentence is unreasonably high as compared with the sentences of Cekic and Paunovic.

The role an offender played in a joint criminal enterprise is but one of many factors that a judge ought properly to consider in determining a sentence. An appropriate sentence is one that reflects all relevant matters. These include the level of his involvement in the offence and his history of offending, personal circumstances and prospects for rehabilitation. The parity principle is not offended where the sentencing Judge assigns unequal sentences to reflect relevant differences between the offenders.
Of the five appellants, Niemann received the lowest sentence. While the Judge found his culpability to be less than that of Cekic, Dettman and Paunovic, it was found to be more than that of Ciantar, the other lookout. Both Ciantar and Niemann received lower terms of imprisonment reflecting their indirect role in the offence. Niemann’s sentence was further reduced in recognition of his positive personal and sporting references, his good prospects for rehabilitation, previous compliance with home detention conditions and his only minor criminal history. In my view, the sentence fixed by the Judge was within the range available, having regard to both Niemann’s involvement in this serious offending and the mitigating factors present in his case. I do not consider that the ratio of the sentences imposed on Cekic and Paunovic to that fixed for Niemann bespeaks error. Nor do I regard Niemann’s sentence as manifestly excessive when viewed in isolation.
The other appellants also complain that the sentences imposed by the Judge are manifestly excessive.
At the outset I note that the highest starting point taken by the Judge – in the cases of Cekic, Dettman and Paunovic – was 12 years’ imprisonment. This is less than half of the maximum penalty for the offence. This offence was aggravated by the planning that lay behind it, the numbers employed to complete it, and the weapons used in inflicting harm. In addition, the injuries sustained by the victim were profound and enduring.
The submission made on behalf of Cekic that the assault was mitigated by its brief duration, the fact that the victim was neither vulnerable nor innocent, and the fact that the appellants did not bring offensive weapons to aid the assault does not, in my view, markedly reduce the seriousness of the offending. This was a brutal and planned attack that left Bonnici close to death. He will live with the injuries caused by the assault for the rest of his life.
I do not agree that the sentence imposed on Cekic falls outside the appropriate range of penalties for offending of this type. Counsel for the respondent acknowledged that penalties previously imposed for offending committed in company and causing serious harm to the victim provide assistance only at a “general level”. Even if there is a range or “tariff” established with respect to causing serious harm with intent, which I doubt, it could not be binding or authoritative. It would at most be a guide or starting point, giving way to the circumstances of the particular offending and the personal circumstances of the offender. In my view, the cases cited by counsel neither establish a tariff nor give assistance as to the available range of sentences for a crime such as the present one.
Having regard to the circumstances of the offending, the personal circumstances and character of Cekic, and his direct role in the offence, I find that the sentence imposed on him was not manifestly excessive.
I turn to Mr Barklay’s submissions with respect to Ciantar. Ciantar received the second lowest head sentence and non-parole period. This reflected his reduced culpability as a lookout and a nominee, and his late entry into the joint enterprise. The Judge weighed these factors against Ciantar’s serious criminal history, including a conviction for conspiracy to threaten harm, and his prospects for rehabilitation, which were found to be quite poor. While Ciantar’s efforts to rehabilitate himself on remand are encouraging, that of itself does not persuade me that the sentence imposed was manifestly excessive. I see no error in the Judge’s approach, or in the result, such as to warrant intervention by this Court.
I turn to Dettman’s complaint. Imposing a disproportionate sentence on Dettman as contemplated by s 20BA(1)(a) and (b) of the Criminal Law (Sentencing) Act was both open to the Judge in this case and appropriate, in light of the significant danger Dettman posed, and continues to pose, to the community. While it is true that under common law principles a person ought not to be sentenced afresh in relation to offending already punished by the courts, s 20BA(1) specifically abrogates the common law position. Dettman’s serious criminal history, including a number of violent offences, speaks to his character, the need for personal deterrence and his prospects for rehabilitation. These factors demonstrate that a penalty beyond that proportionate for this specific offence was warranted.
In my view, the sentence of imprisonment imposed on Dettman was not, in the circumstances, manifestly excessive.
Last, I consider the submissions made on behalf of Paunovic that his sentence would have been lower had regard properly been had to his family relationships and prospects for rehabilitation.
The Judge in sentencing had regard to these factors, but they could only take Paunovic so far. The Judge could not ignore Paunovic’s extensive criminal history, drug addiction, and direct involvement in the serious offence before the Court. As with the co-appellants, the Judge weighed the mitigating personal circumstances relevant to Paunovic with his criminal antecedents, the seriousness of the assault on Bonnici and the need for personal and general deterrence in the case of those associated with outlaw motorcycle gangs.
I see no errors in the final head sentence and non-parole period fixed in relation to Paunovic.
Conclusion
None of the grounds of appeal of any appellant has been made out. For these reasons, the appeal in each case is dismissed.
KELLY J: I would dismiss all appeals against sentence for the reasons given by Vanstone J.
DAVID AJ: I would dismiss all appeals against sentence. I agree with the reasons of Vanstone J.