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R v Hibeljic

R v Hibeljic

Case [2018] SASCFC 35 11 May 2018

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Supreme Court of South Australia
(Court of Criminal Appeal)
R v HIBELJIC
[2018] SASCFC 35
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Doyle)
11 May 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - OBSCENE, INDECENT OR OBJECTIONABLE PUBLICATIONS OR REPRESENTATIONS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
The appellant pleaded guilty to one count of blackmail and one count of knowingly distributing an invasive image. The offending arose out of the appellant's conduct in threatening his former girlfriend that he would distribute a video of her with her breasts exposed unless she had sex with him, and in fact distributing it to three people (her friend, new boyfriend and father).
The sentencing judge commenced with a single head sentence for the two offences of five years imprisonment. After reducing the sentence for the appellant’s guilty plea and time spent in custody, the sentencing judge imposed a head sentence of three years three months imprisonment and a non-parole period of 15 months. The sentencing judge declined to suspend the sentence of imprisonment and also declined to order that it be served on home detention.
The appellant appeals on the ground that the sentence imposed was manifestly excessive. The appellant also appeals on the grounds that the sentencing judge erred in refusing to suspend the sentence or order that it be served on home detention.
Held per Doyle J (Peek and Blue JJ agreeing) dismissing the appeal.
1.      The head sentence is not manifestly excessive;
2.      The sentencing judge did not err in declining to suspend the sentence;
3.      The sentencing judge did not err in declining to order that the sentence be served on home detention.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, referred to.
House v The King (1936) 55 CLR 499; Wessling v Police (2004) 88 SASR 57, applied.
R v Hevko [2018] SASCFC 22, distinguished.
R v Hollitt [2006] SASC 280, discussed.
Hili v The Queen (2010) 242 CLR 520; R v Morse (1979) 23 SASR 98; R v O’Toole [2013] SASCFC 18; R v Skinner (2016) 126 SASR 120; R v Filipponi (2016) 126 SASR 464; R v Dell (2016) 126 SASR 571; R v Hosking (2017) 128 SASR 37; R v Best [2017] SASCFC 55; R v Taheri [2017] SASCFC 115, considered.

R v HIBELJIC
[2018] SASCFC 35
Court of Criminal Appeal: Peek, Blue and Doyle JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Doyle J.
BLUE J: I agree with Doyle J.
DOYLE J: Following pleas of guilty, the appellant was convicted of one count of blackmail (maximum penalty 15 years imprisonment), and one count of knowingly distributing an invasive…

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 Hibeljic

Details

AGLC: R v Hibeljic [2018] SASCFC 35
Case: [2018] SASCFC 35
Decision Date: 11 May 2018

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, R v Hibeljic, before the Full Court of the Supreme Court of South Australia, comprising Peek, Blue and Doyle JJ. The dispute centred on the sentencing judge's refusal to grant the appellant's request for his prison sentence to be served under home detention.

The primary legal issue before the Full Court was whether the sentencing judge had erred in the exercise of her discretion by declining to make an order for home detention. This required the Court to consider the principles governing appellate review of sentencing discretion, specifically as articulated in *House v The King*.

The Court found that the appellant had failed to demonstrate an error in the sentencing judge's exercise of discretion, as required by the test in *House v The King*. This test requires an appellant to show that the sentencing judge made a mistake in law or in the application of the law to the facts, or that the sentence was so unreasonable that no judge could properly have imposed it. Without such a demonstration, the appellate court will not interfere with the sentencing judge's decision.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant has not demonstrated error, in the sense required by House v The King,[13] in the sentencing judge’s exercise of her discretion to decline to make an order that the appellant serve his sentence of imprisonment on home detention.[13] House v The King (1936) 55 CLR 499 at 504-505.Conclusion For the reasons set out I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Hibeljic [2018] SASCFC 35

Most Recent Citation

Ludgate v Police [2018] SASC 175

Cases citing this decision · 10 of 10 shown

Ahmed v Commissioner of Police
[2025] SASC 180 Para 13

…t to the amount of analysis that may be brought to bear. Often manifest excess will be a conclusion that does not admit of lengthy exposition.[7] [6] [2018] SASCFC 35 [7] Ibid, [43].…
Vanson v The King
[2024] SASCA 62 Para 33

…f imprisonment, nevertheless the issues at each stage are different, and require a separate and distinct weighing and synthesis of those factors. [2] [2018] SASCFC 35. [3] [2018] SASCFC 22. [4] R v Hibeljic [2018] SASCFC 35 at [74].…
Ladd v Services Australia; Noblet v Services Australia
[2024] SASC 63 Para 34

…nt matters were considered by the Magistrate. The respondent relied upon the approach of Doyle J (Peek and Blue JJ agreeing) in R v Hibjelic. [8] [8] [2018] SASCFC 35.…
Baker v The King
[2022] SASCA 109 Para 11

…orse ;[8] R v Hibeljic ;[9] and Cuong v The Queen .[10] [8] R v Morse (1979) 23 SASR 98 at 99 (King CJ; White & Mohr JJ agreeing). [9] R v Hibeljic [2018] SASCFC 35 at [43] (Doyle J; Peek & Blue JJ agreeing). [10] Cuong v The Queen [2021] SASCA 89 at [44] (Livesey JA).…
Davidson v The Queen
[2021] SASCA 130 Para 21

…is convenient to simply repeat the relevant section of the reasons of Doyle J (with whom Peek and Blue JJ agreed) in that case:[26] [25] R v Hibeljic [2018] SASCFC 35. [26] R v Hibeljic [2018] SASCFC 35 at [71]-[79] (Doyle J, Peek and Blue JJ agreeing). The sentencing judge’s reasons for declining to order home det…
Ilich v The Queen
[2021] SASCA 45 Para 29

…xcessive for trafficking a large commercial quantity of a mixed substance containing around 60 per cent pure methylamphetamine.[37] [37] R v Hibeljic [2018] SASCFC 35, [43] (Doyle J).…
Knight v The Queen
[2021] SASCFC 12 Para 21

…v Kong (2013) 115 SASR 425, [90]-[92]; R v Young (2016) 126 SASR 41, [40] (Kourakis CJ). [14] R v Morse (1979) 23 SASR 98, 99 (King CJ); R v Hibeljoc [2018] SASCFC 35, [43] (Doyle J). The circumstances of the offender…
R v Mackay
[2019] SASCFC 45 Para 12

…stage of the sentencing exercise. These factors may thus weigh more heavily at this stage of the sentencing exercise. (footnotes in original) [17] [2018] SASCFC 35 at [64]. [18] Wessling v Police (2004) 88 SASR 57 at [26]-[27], as applied, for example, in R v O’Toole [2013] SASCFC 18 at [50] and R v Skinner (2016)…
Ludgate v Police
[2018] SASC 175 Para 1

…culate what is, after all, meant to be the product of an instinctive synthesis that is often not readily susceptible of detailed articulation. [15] [2018] SASCFC 35 at [75].…
R v Ross
[2018] SASCFC 120 Para 16

…tion of the video was inherently capable of, and likely to, cause significant and ongoing hurt, distress and embarrassment.[13] [13] R v Hibeljic [2018] SASCFC 35 at [50].…

View all 10 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Hevko
[2018] SASCFC 22 Para 32

…571 at [40]-[60]; R v Hosking (2017) 128 SASR 37 at [6]-[9]; R v Best [2017] SASCFC 55 at [44]-[53], R v Taheri [2017] SASCFC 115 at [24]; R v Hevko [2018] SASCFC 22.…
R v Taheri
[2017] SASCFC 115 Para 32

…t [23]-[28]; R v Dell (2016) 126 SASR 571 at [40]-[60]; R v Hosking (2017) 128 SASR 37 at [6]-[9]; R v Best [2017] SASCFC 55 at [44]-[53], R v Taheri [2017] SASCFC 115 at [24]; R v Hevko [2018] SASCFC 22.…
R v Best
[2017] SASCFC 55 Para 32

…s. [8] R v Filipponi (2016) 126 SASR 464 at [23]-[28]; R v Dell (2016) 126 SASR 571 at [40]-[60]; R v Hosking (2017) 128 SASR 37 at [6]-[9]; R v Best [2017] SASCFC 55 at [44]-[53], R v Taheri [2017] SASCFC 115 at [24]; R v Hevko [2018] SASCFC 22.…
R v Dell
[2016] SASCFC 156 Para 32

…s not necessary to repeat the matters of general principle addressed in those decisions. [8] R v Filipponi (2016) 126 SASR 464 at [23]-[28]; R v Dell (2016) 126 SASR 571 at [40]-[60]; R v Hosking (2017) 128 SASR 37 at [6]-[9]; R v Best [2017] SASCFC 55 at [44]-[53], R v Taheri [2017] SASCFC 115 at [24]; R v Hevko [201…
R v Filipponi
[2016] SASCFC 148 Para 32

…in several decisions of this Court.[8] It is not necessary to repeat the matters of general principle addressed in those decisions. [8] R v Filipponi (2016) 126 SASR 464 at [23]-[28]; R v Dell (2016) 126 SASR 571 at [40]-[60]; R v Hosking (2017) 128 SASR 37 at [6]-[9]; R v Best [2017] SASCFC 55 at [44]-[53], R v Taher…
R v Skinner
[2016] SASCFC 106 Para 26

…ng exercise. [7] Wessling v Police (2004) 88 SASR 57 at [26]-[27], as applied, for example, in R v O’Toole [2013] SASCFC 18 at [50] and R v Skinner (2016) 126 SASR 120 at [81].…
R v O'Toole
[2013] SASCFC 18 Para 26

…ore heavily at this stage of the sentencing exercise. [7] Wessling v Police (2004) 88 SASR 57 at [26]-[27], as applied, for example, in R v O’Toole [2013] SASCFC 18 at [50] and R v Skinner (2016) 126 SASR 120 at [81].…
Hili v The Queen
[2010] HCA 45 Para 5

…f analysis that may be brought to bear. Often manifest excess will be a conclusion that does not admit of lengthy exposition.[5] [3] Hili v The Queen (2010) 242 CLR 520 at [59]-[60]. [4] R v Morse (1979) 23 SASR 98. [5] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].…
The Queen v Morse
[2009] NZCA 51 Para 5

…anifest excess will be a conclusion that does not admit of lengthy exposition.[5] [3] Hili v The Queen (2010) 242 CLR 520 at [59]-[60]. [4] R v Morse (1979) 23 SASR 98. [5] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].…
R v Hollitt
[2006] SASC 280 Para 14

…mposed a sentence of five years imprisonment with a two year non-parole period, and declined to suspend the sentence of imprisonment. [6] R v Hollitt [2006] SASC 280.…
Wessling v Police
[2004] SASC 51 Para 26

…t at this stage of the sentencing exercise. These factors may thus weigh more heavily at this stage of the sentencing exercise. [7] Wessling v Police (2004) 88 SASR 57 at [26]-[27], as applied, for example, in R v O’Toole [2013] SASCFC 18 at [50] and R v Skinner (2016) 126 SASR 120 at [81].…
House v R
[1936] HCA 40 Para 3

…sals to suspend the sentence of imprisonment or order that it be served on home detention) was unreasonable or plainly unjust. [2] House v The King (1936) 55 CLR 499 at 504-505. Manifest excess…
House v The King
63 WN 176 Para 3

…ncluding the refusals to suspend the sentence of imprisonment or order that it be served on home detention) was unreasonable or plainly unjust. [2] House v The King (1936) 55 CLR 499 at 504-505. Manifest excess…

Legislation cited in this decision · 1

Criminal Law (Sentencing) Act 1988 (SA)
18A 2 mentions (from Para 4)