SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KARTINYERI
[2016] SASCFC 20
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Nicholson)
3 March 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Appeal against sentence. The appellant was charged with multiple offences committed over a period of time: one count of robbery; one count of theft; two counts of deception; two counts of damage property; two counts of breach bail; and one count of assault. Following the appellant’s plea of guilty in the Magistrates Court to the one count of robbery, that matter was committed to the District Court for sentencing. The remaining Magistrates Court matters were then transferred to the District Court in order for the appellant to be sentenced for all of his outstanding offences at the same time.
The Judge identified individual sentences as follows: three years imprisonment for the count of robbery; eight months imprisonment for the one count of theft and two counts of deception; six months imprisonment for each of the two counts of damage property; six months imprisonment for the one count of assault; and a conviction with no further penalty for one of the breach of bail offences. The total of five years and two months was reduced to five years after allowing a two month reduction for time in custody. The Judge fixed a non-parole period of 15 months.
The appellant has appealed on the ground that the sentences indicated for each of the two counts of damage property and for the one count of theft and two counts of deception were manifestly excessive.
Held per Nicholson J (Kourakis CJ and Kelly J agreeing) allowing the appeal:
1. Notwithstanding that the Judge indicated individual sentences for the separate offences, the Judge imposed a single head sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).
2. Each of the sentences identified by the Judge for the two counts of damage property and for the one count of theft and two counts of deception were manifestly excessive. As a consequence and in any event the single head sentence imposed by the Judge was manifestly excessive.
3. Permission to appeal, insofar as is necessary, is granted and the appeal is allowed.
4. The sentence of the District Court is set aside and the appellant is to be resentenced.
5. For all of the offences, but for the two breach of bail offences, the appellant is resentenced to a single term of imprisonment for three years and eight months with a non-parole period of fifteen months, both backdated to commence on 18 April 2015.
6. For the two breach of bail offences, a conviction will be recorded in each case with no further penalty.
Criminal Law Consolidation Act 1935 (SA)…
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- R v Kartinyeri [2016] SASCFC 20
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- [2016] SASCFC 20
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CaseChat Overview and Summary
The central legal issue was whether the sentences imposed were manifestly excessive, meaning unreasonable or plainly unjust given the facts of the case. The court was required to consider whether the sentencing judge had made any error of principle, mistaken the facts, failed to consider material matters, or if the overall sentence was unreasonable or plainly unjust.
The court applied the principles established in *House v The King* and *Markarian v The Queen*, which guide appellate review of sentencing discretion. This involves assessing whether specific errors of principle have occurred or if the resultant sentence is unreasonable or plainly unjust. The court noted that ordinarily, when determining manifest excess, appellate courts consider the maximum penalty, customary sentencing ranges, the seriousness of the offence, and the offender's personal circumstances. However, in this instance, the court found that the indicative sentences, when viewed in isolation, were excessive. The court acknowledged that these types of offences are typically dealt with in the Magistrates Court, where sentences are generally shorter.
Ultimately, the court found that while the indicative sentences were excessive, they were merely part of the sentencing judge's reasoning process for the single head sentence imposed under section 18A of the relevant Act. The court did not make specific orders regarding the indicative sentences as they were not the final sentence imposed.
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
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Ratio Decidendi
Legal Principle Established
Established by: KOURAKIS CJ, NICHOLSON J
It is apparent that the appellant has a very poor attitude with respect to the police, the authorities and court orders generally, a significant anger and frustration management problem and a propensity to resort, readily, to violence. Unless steps (including professional assistance) are taken to assist the appellant with these issues, it is almost inevitable that he will spend more and longer periods of time in prison.Consideration As earlier indicated, the appellant challenges only the indicative sentences for the theft and two deception offences (eight months imprisonment reduced from a starting point of 12 months) and for the two damage property offences (in each case, six months imprisonment reduced from a starting point of approximately 8.6 months). Implicit, if not express, in the appellant’s appeal is a challenge to the final head sentence imposed. The question of whether or not a sentence is manifestly excessive is to be determined by asking whether on the facts, the sentence imposed was unreasonable or plainly unjust. In Markarian v The Queen[16] a plurality in the High Court characterised the enquiry in this way.As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King[17], itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".Ordinarily, an appellate court when deciding the question of manifest excess will include in the factors to be considered: the maximum penalty for the relevant offence; the range of sentencing customarily observed for the type of offence; the seriousness of the offence committed; and the personal circumstances of the offender.[18] [16] [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow and Callinan JJ).[17] (1936) 55 CLR 499 at 504-505.[18] R v Scarpantoni [2013] SASCFC 120 at [81] (Kourakis CJ and Sulan J). In my view, each of the component sentences challenged, when viewed in isolation, was excessive to an extent of being unreasonable and plainly unjust. In fairness to the Judge, these are not the type of offences that ordinarily come before the District Court. In the ordinary course, offences of this nature are dealt with on a daily basis in the Magistrates Court. Typically, in each case and if imprisonment were found to be warranted, a period in the order of weeks or perhaps a few months before any allowance for plea would be imposed. Had the challenged sentences actually been imposed I would have found each one to be manifestly excessive in all the circumstances. However, as already discussed, they are only indicative sentences forming part of the reasoning of the Judge leading to the one sentence imposed under section 18A.