R v Hibeljic

Case [2018] SASCFC 35


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

  1. PEEK J:   I would dismiss the appeal.  I agree with the reasons of Doyle J.

  2. BLUE J:   I agree with Doyle J.

  3. 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…

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

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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