R v Kampf

Case [2021] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kampf [2021] QCA 47

PARTIES:

R
v
KAMPF, Mikael Jai
(applicant)

FILE NO/S:

CA No 134 of 2020
DC No 114 of 2020
DC No 205 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton – Date of Sentence: 23 June 2020 (Burnett DCJ)

DELIVERED ON:

19 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2021

JUDGES:

Fraser and Mullins JJA and Rafter AJ

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to seven years’ imprisonment – where the applicant pleaded guilty to one count of armed robbery in company with personal violence, one count of grievous bodily harm and a summary offence – where a serious violent offence declaration was made – where the complainant suffered significant, life threatening head and facial injuries – where 96 days of pre-sentence custody was declared as time already served under the sentence – where the applicant submitted that that the comparable cases relied upon by the Crown “had significant distinguishing features which made them more serious” than the present case and did not support a range of between seven to eight years’ imprisonment – where the applicant sought that the period of pre-sentence custody during which he was serving the remainder of the sentence imposed should be treated as pre-sentence custody on remand – where the applicant’s compliance with previous parole requirements was unsatisfactory – whether the serious violent offence declaration was manifestly excessive – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(3)(d), s 9(3)(e), s 9(3)(g), s 9(3)(h), s 161B(3)

R v Bennett[2016] QCA 31, cited
R v Berns[2020] QCA 36, cited
R v De Salvo (2002) 127 A Crim R 229; [2002] QCA 63, cited
R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited
R v Houkamau[2016] QCA 328, cited
R v King & Morgan; Ex parte Attorney-General (2002) 134 A Crim R 215; [2002] QCA 376, cited
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Noltenius[2014] QCA 303, cited
R v Orchard[2005] QCA 141, cited
R v Taki[2015] QCA 60, cited

COUNSEL:

J P Mould for the applicant
D Nardone for the respondent

SOLICITORS:

Razor Legal for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Rafter AJ and the order proposed by his Honour.

  2. MULLINS JA:  I agree with Rafter AJ.

  3. RAFTER AJ: On 23 June 2020 in the District Court at Rockhampton the applicant was convicted on his own pleas of guilty of armed robbery in company with personal violence (Count 1) and grievous bodily harm (Count…

Continue reading R v Kampf

Sign in free to access the full text

Details
AGLC
R v Kampf [2021] QCA 47
Case
[2021] QCA 47
Decision Date

CaseChat Overview and Summary

In the matter of R v Kampf, the applicant appealed against the sentence imposed by the trial judge, arguing that the sentence was manifestly excessive. The applicant was sentenced to seven years' imprisonment for offences including armed robbery in company with personal violence, grievous bodily harm, and a summary offence. The trial judge also made a declaration that the conviction was a serious violent offence. The applicant contended that the Crown's comparator cases had significant distinguishing features that made them more serious and did not support a sentence range between seven to eight years' imprisonment. The applicant also sought for the period of pre-sentence custody to be treated as pre-sentence custody on remand, given his unsatisfactory compliance with previous parole conditions.

The court examined whether the sentence imposed was manifestly excessive and if the serious violent offence declaration was appropriate. The applicant argued that the sentencing judge applied an incorrect test by considering whether the offending was "beyond the norm," referencing R v McDougall and Collas. The court noted that the sentencing judge had not been aware of the subsequent decision in R v Free; Ex parte Attorney-General (Qld), which provided guidance on the exercise of discretion in declaring a serious violent offence. The court concluded that the sentencing judge's consideration of whether the offending was "outside the norm" was too narrow and failed to consider broader factors that warranted the serious violent offence declaration.

The court found no error in the sentencing judge's approach and determined that the sentence of seven years' imprisonment with a declaration that the conviction was a serious violent offence was not manifestly excessive. The court held that the sentencing judge appropriately considered the principle of totality and the relevant aggravating factors in the case. Consequently, the application for leave to appeal against the sentence was refused.

The court's decision affirmed the sentence imposed by the trial judge, finding no grounds for interference. The court's ruling ensures that the sentence and the serious violent offence declaration appropriately reflected the seriousness of the applicant's crimes and the need for adequate punishment and community protection.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There was no error by the sentencing judge.Conclusion and order The sentence of seven years’ imprisonment with a declaration that the conviction was a serious violent offence is not manifestly excessive. For the reasons given, the application for leave to appeal against sentence should be refused.

Ratio Decidendi

Legal Principle Established

The sentence of 12 months and two weeks’ imprisonment imposed on 14 May 2019 was in respect of offences of failing to appear, unlawful use of motor vehicles, breaking and entering premises, stealing and fraud. The offences were committed in December 2018 and February and March 2019. The applicant was released on parole on 24 June 2019 and his compliance with the conditions of the parole order was unsatisfactory. The present offending on 8 July 2019 was within about two weeks of the applicant’s release on parole. The sentencing judge had appropriate regard to the principle of totality.Serious Violent Offence Declaration The applicant submits that the sentencing judge applied an incorrect test by considering whether the offending was “beyond the norm”. Although it is not a ground of appeal, the applicant also submits that an offender’s criminal history is “arguably not relevant” to the exercise of the discretion to declare a conviction to be a conviction of a serious violent offence.[28] [28]Applicant’s outline of submissions at para 4(f).Did the sentencing judge erroneously consider whether the offending was “beyond the norm”? At the sentence hearing the Crown prosecutor and defence counsel made submissions on the serious violent offence issue based on R v McDougall and Collas.[29] In that case the Court noted that differences of opinion had emerged in the decided cases in relation to whether the discretion to declare that an offender has been convicted of a serious violent offence can be exercised when the circumstances of the offence do not take it beyond the “norm” for the type of offence being considered.[30] The Court made a number of observations to assist sentencing courts.[31] The Court said that a discretionary declaration that an offence is a serious violent offence will usually be reserved for the more serious offences that, by their nature, warrant a declaration. The Court also said that: “where the circumstances of the offence do not take it out of the ‘norm’ for that type, and where the sentencing judge does not identify matters otherwise justifying the exercise of the discretion, it is likely that the overall result will be a sentence which is manifestly excessive …”[29][2007] 2 Qd R 87.[30][2007] 2 Qd R 87 at 95 [16].[31][2007] 2 Qd R 87 at 96-97 [19]. The sentencing judge was not referred to the judgment of this Court in R v Free; Ex parte Attorney-General (Qld)[32] which was delivered on 31 March 2020, almost three months before the sentence in this matter on 23 June 2020. In R v Free; Ex parte Attorney-General (Qld), the Court traced the first reference to the expression “beyond the norm” to the reasons of Williams JA in R v De Salvo.[33] In R v Free; Ex parte Attorney-General (Qld), the Court held that the sentencing judge had erred in the exercise of discretion “… by focussing on a perceived need to find factors which take the case outside the norm for the type of offence; rather than considering more broadly whether there are circumstances of the case which aggravate the offence in a way which suggests the protection of the public or adequate punishment required a longer period in actual custody before eligibility for parole than would otherwise be required.”[34] The Court observed that the “outside the norm” test was a frequently used expression, but that such a focus was too narrow.[35] The Court explained that consideration of whether particular offending is “outside the norm” can obscure the need to consider whether other factors such as community protection or adequate punishment warrant consideration of an offence being declared as a serious violent offence.[36][32](2020) 4 QR 80.[33](2002) 127 A Crim R 229, 232 [15]; [2002] QCA 63 at [15].[34](2020) 4 QR 80 at 98 [49].[35](2020) 4 QR 80 at 98 [50].[36](2020) 4 QR 80 at 99 [54].