R v Flentjar - [2013] SASCFC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FLENTJAR
[2013] SASCFC 11
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice David)
12 March 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appeal against sentence - the appellant pleaded guilty to 20 offences committed over approximately seven weeks - the appellant was on parole at the time of the offending - the appellant was sentenced to nine years, five months and seven days' imprisonment which included an unexpired parole period of four years, two months and seven days - a non-parole period of four years and 11 months' imprisonment was imposed - whether the sentence was manifestly excessive - whether, having regard to the defendant's mental state, the sentencing Judge placed too much weight on deterrence - whether the Judge erred in failing to reduce the sentence pursuant to principles of totality.
Held: appeal dismissed - the sentencing Judge had regard to the appellant's mental state and correctly held that deterrence remained a paramount consideration - the sentences imposed were well within the acceptable range - unexpired parole cannot be taken into account strictly on the principle of totality, though it is part of the personal circumstances of an offender - there are no grounds to intefere with the Judge's decision not to reduce the sentence pursuant to principles of totality.
Correctional Services Act 1982 (SA) s 75; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Tsiaras [1996] 1 VR 398; R v Mooney (unreported, Vic CCA, 21 June 1978); Payne v The Queen (2002) 131 A Crim R 432; R v Wiskich (2000) 207 LSJS 431; R v Verdins (2007) 169 A Crim R 581; R v Yaldiz [1998] 2 VR 376; R v E, AD (2005) 93 SASR 20; R v Rossi (1988) 142 LSJS 451; R v Waugh (2005) 93 SASR 274; R v Bennett [2005] SASC 55; R v B, RWK (2005) 91 SASR 200; R v Kench (2005) 152 A Crim R 294; R v Roberts [2003] WASCA 203; R v Anderson [1981] VR 155, considered.

R v FLENTJAR
[2013] SASCFC 11

KOURAKIS CJ: I agree that the appeal should be dismissed largely for the reasons given by Sulan J. I wish to make just one qualification and one additional remark.
I deal with the qualification first. I am not persuaded that the appellant’s letter to the Court and apology in open court reflect a true acceptance of responsibility. The appellant’s letter still attempts to deflect blame on others. It is, I think, an open question whether the attacks on the appellant’s home caused him to fall into…

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.

Continue reading R v Flentjar

Details

AGLC: R v Flentjar [2013] SASCFC 11
Case: [2013] SASCFC 11
Decision Date: 12 March 2013

CaseChat Overview and Summary

The appellant, R v Flentjar, appealed against a sentence imposed by the sentencing Judge. The appellant had pleaded guilty to 20 offences committed over a period of approximately seven weeks, while he was on parole. The sentencing Judge imposed a total sentence of nine years, five months and seven days imprisonment, which included an unexpired parole period of four years, two months and seven days, and set a non-parole period of four years and 11 months. The appeal was heard by Kourakis CJ, Sulan and David JJ.

The central legal issues before the Full Court were whether the sentence imposed was manifestly excessive, whether the sentencing Judge had placed too much emphasis on deterrence given the appellant's mental state, and whether the Judge had erred in failing to adequately apply the principle of totality when aggregating the sentences for the various offences.

The Full Court dismissed the appeal, finding that the sentencing Judge had properly considered the appellant's mental state and correctly concluded that deterrence remained a paramount consideration. The Court held that the sentences imposed were within the acceptable range. Regarding the principle of totality, the Court clarified that an unexpired parole period cannot be strictly accounted for under this principle, although it is a relevant personal circumstance of the offender. Consequently, there were no grounds to interfere with the sentencing Judge's decision not to reduce the sentence based on the totality principle.

Orders

Orders of the court

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Background

Background to the litigation

The first ground of appeal is that, in light of the defendant’s mental state, the sentencing Judge placed too much weight upon the principles of general and personal deterrence. The second ground is that the sentencing Judge failed to have sufficient regard to the principle of totality when accumulating the sentences for the offences. Finally, it is the defendant’s contention that both the sentence and non-parole period were manifestly excessive.Background In order to understand the grounds of appeal, it is necessary to deal in some detail with both the circumstances of the offending and the personal circumstances of the defendant. It is convenient to, first, deal with the personal circumstances of the defendant, as they are relevant to explaining, in part, why he committed the offences.Personal circumstances The defendant was born on 12 February 1981. He and his parents lived together with his siblings in the Riverland, until his parents separated when he was ten years of age. He was the middle of five children, having two older brothers, a younger brother and a younger sister. He has contact with his younger brother, but has almost no relationship with his other siblings. The defendant had a disturbed childhood. His father physically abused him until his parents separated. He was then raised by his mother but, as in many cases that come before criminal courts, he had a troubled time during his adolescent years, often being involved in altercations at school. He left school after Year 8. By that time, he was abusing alcohol and marijuana. At the age of 16, he turned to amphetamines and heroin. Unsurprisingly, at the age of 13 he became involved in criminal offending. He appeared in the Youth Court charged with robbery. Over a period of three years, he was regularly before the Youth Court charged and convicted with serious offences, including armed robbery, assaulting police and stealing. On several occasions, he received sentences of detention. His serious adult offending commenced when he was 18 years of age. He was convicted of larceny and received a three month suspended sentence. Within 12 months of receiving that sentence, he committed a series of offences including non-aggravated serious criminal trespass, larceny, resist police and various traffic offences, for which he received a sentence of 23 months and two weeks’ imprisonment, with a non-parole period of 14 months. In 2001, he committed two serious armed robberies, for which he was convicted and sentenced in the District Court of South Australia on 25 June 2003 to 11 years and eight months’ imprisonment, with a non-parole period of eight years and eight months’ imprisonment. The Court of Criminal Appeal reduced the non-parole period to six years’ imprisonment. The Court indicated that a long parole period was appropriate to give the defendant an opportunity to make a fresh start. It is clear from the criminal history of the defendant that he has spent the bulk of his adult life in gaol. Part of the problem faced by the defendant is his inability to cope with stresses that occur when living in the community. It would appear that his period in custody did not equip him with the necessary skills to live in the community. I shall refer in more detail to that problem when I deal with the psychiatric and psychological reports which were presented to the sentencing Judge.

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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