R v Kartinyeri - [2016] SASCFC 20

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) s 20, s 85, s 134, s 137, s 139, s 352; Criminal Law (Sentencing) Act 1988 (SA) s 9C, s 10B, s 10C, s 18A; Magistrates Court Act 1983 (SA) s 22; Bail Act 1985 (SA) s 17, referred to.
R v Capalbo [2005] SASC 47; R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398; R v Belczacki [2012] SASCFC 4, (2012) 112 SASR 95; R v Bagnato [2011] SASCFC 161, (2011) 112 SASR 39; House v The King [1936] HCA 40, (1936) 55 CLR 499; R v Deng [2015] SASCFC 176; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Scarpantoni (2013) 118 SASR 131, [2013] SASCFC 120, considered.

R v KARTINYERI
[2016] SASCFC 20
Court of Criminal Appeal: Kourakis CJ, Kelly and Nicholson JJ
KOURAKIS CJ.

I agree that the appeal should be allowed for the reasons given by Nicholson J. I would join in the orders he proposes.
KELLY J.
I agree with the orders proposed by Nicholson J and with his reasons.
NICHOLSON J.
Introduction
This is an appeal against sentence. The questions of whether permission to appeal is required and, if so, whether it should be given have been referred to this Court. Nevertheless, I will refer to the offender as the appellant.
The appellant pleaded guilty in the Magistrates Court to one count of robbery[1] and was committed to the District Court for sentence. The maximum penalty for this offence is imprisonment for 15 years. A number of Magistrates Court matters were also referred to the District Court in order that the appellant might be sentenced for all of his then outstanding offences at the same time. The matters called up were matters that, following any plea of guilty, ordinarily would have been dealt with by a Magistrate. The Judge sentenced the appellant for the Magistrate Court matters pursuant to the power invested in a District Court judge to sit as a Magistrate.[2]
[1] Contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Section 22(c) of the Magistrates Act 1983 (SA).
The Magistrates Court matters comprised one count of theft,[3] the maximum penalty for which is imprisonment for ten years; two counts of deception,[4] the maximum penalty for each of which is imprisonment for ten years; two counts of damage property,[5] the maximum penalty for each of which is imprisonment for ten years; two counts of breach of bail,[6] the maximum penalty for each of which is a fine of $10,000 or imprisonment for two years; and one count of assault,[7] the maximum penalty for which is imprisonment for two years.
[3] Contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA).
[4] Contrary to section 139(a) of the Criminal Law Consolidation Act 1935 (SA).
[5] Contrary to section 85(2) of the Criminal Law Consolidation Act 1935 (SA).
[6] Contrary to section 17 of the Bail Act 1985 (SA).
[7] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The appellant pleaded guilty, before the Judge, to all of the Magistrates Court offences. By reference to the timing of the various pleas, the appellant was entitled with respect to any term of imprisonment imposed, to a discount of up to 40 per cent for the District Court robbery offence[8] and a discount of up to 30 per cent for each of the Magistrates Court offences.[9]
[8] Section 10C of the Criminal Law (Sentencing) Act 1988 (SA).
[9] Section 10B of the Criminal Law (Sentencing) Act 1988 (SA).
The total head sentence imposed for all of the offending was imprisonment for five years with a non-parole period of 15 months backdated to 18 April 2015, being the date the appellant was last taken into custody. In arriving at this total head sentence the Judge identified individual sentences for each of the offences.
The appellant has sought to appeal against, what have been characterised in the amended notice of appeal filed 20 November 2015, as “the distinct sentences imposed” for the theft offence, the two deception offences and the two damage property offences. The appellant does not seek to challenge any of the sentences identified for the offences of robbery, breaches of bail and assault. The appellant does not seek to challenge the non-parole period imposed. The only ground of appeal is that each of the challenged prison terms is manifestly excessive.
The respondent submits that the Judge imposed one penalty for all of the offending pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). As a consequence, it is not open to the appellant to challenge any of the individual prison terms. The only question before the Court should be whether the final sentence of five years imprisonment with a non-parole period of 15 months is manifestly excessive. I will need to return to this issue.
The source of the appeal
The appellant wishes to appeal from a sentencing decision that embraced a matter committed for sentencing by the Judge in his capacity as a District Court Judge together with matters referred to the Judge to be dealt with by his Honour in his capacity as a Magistrate. The remarks of White J (with whom Doyle CJ and Besanko J agreed) in R v Capalbo are apposite.[10]
Where a person is convicted on Information in the District Court, an appeal against sentence lies to the Full Court of this Court only with leave; s 352 Criminal Law Consolidation Act 1935 (“the CLCA”). Insofar as the sentence of imprisonment was imposed for the offences charged on Information in the District Court, leave to appeal was therefore required. As noted above, a Judge of this Court granted that leave on 5 July 2004.
It was suggested in R v Allen [2002] SASC 98; (2002) 81 SASR 434 that an appeal against sentences imposed by the District Court for offences referred to it for sentencing from the Magistrates Court lay as of right pursuant to s 42 of the Magistrates Court Act 1991 to a single judge of this Court. On the other hand, in R v Gibbs [2004] SASC 187; (2004) 89 SASR 30, Perry J, with whom Mullighan J was in general agreement, considered that in respect of offences charged other than on information, the appeal lay by right to the Full Court pursuant to s 43 of the District Court Act 1991. Doyle CJ was not prepared to depart from the position determined in R v Allen without hearing full argument. This was also the approach adopted by Gray J (with whom Nyland J agreed) in R v Simpson [2004] SASC 307. In the circumstances of this case where leave to appeal to this Court has, in any event, been granted on all grounds, it is not necessary to address this issue. It is plain however that this is an issue which warrants prompt attention by the Parliament.[11]
Notwithstanding that these remarks were expressed in 2005, the particular issue agitated by White J does not appear to have been advanced since then.
[10] [2005] SASC 47 at [14]-[15].
[11] Cf the statements to this effect by Doyle CJ and Mullighan J in R v Gibbs [2004] SASC 187; (2004) 89 SASR 30 at 33 [11] and 48 [135] and by Gray J in R v Simpson [2004] SASC 307 at [51].
Out of an abundance of caution, the appellant has filed two notices of appeal against sentence; one being the amended notice of appeal dated 20 November 2015 seeking permission to appeal in accordance with the requirement imposed by section 352 of the Criminal Law Consolidation Act 1935 and one headed “Notice of Appeal”, filed on 1 December 2015, purporting to appeal as of right with respect to the sentences imposed for the Magistrates Court offences.
The respondent’s contention that the Judge imposed one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 for all of the offending, albeit after nominating individual sentences for each offence, is correct. It follows that any appeal can only be against that single penalty sentence and not against any of the individual components.[12]
[12] R v Capalbo [2005] SASC 47 at [58]-[59] (White J with whom Doyle CJ and Besanko J agreed) and see also R v Copeland (No 2) (2010) 108 SASR 398, R v Belczacki (2011) 112 SASR 95 and R v Bagnato (2011) 112 SASR 39.
During the permission hearing I extended the time within which the earlier notice of appeal and the later notice of appeal might be filed. I referred any question of permission to appeal to the Full Bench of the Court of Criminal Appeal. Given that the single sentence appealed from embraces the District Court robbery offence, it may be that permission is required on any analysis. Insofar as permission to appeal is required, I would grant that permission.
A finding that one or more of the indicated components, if considered in isolation, is manifestly excessive, might be regarded as an explanation for why the final single penalty might be seen as manifestly excessive. In addition, it may be that a finding that any one or more of the indicated components, viewed in isolation, is manifestly excessive will found a specific error of principle or process error within the House v The King formulation,[13] such that the overall sentencing discretion will have miscarried. If so, it would be open to this Court to allow the appeal and resentence whether or not the final head sentence was manifestly excessive.
[13] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.
It is not necessary that I form a concluded view on the validity of this alternative approach. I am satisfied that each of the challenged “sentences”, if viewed in isolation, is manifestly excessive. However, I am also satisfied that the final head sentence of imprisonment for five years is manifestly excessive. I would allow the appeal and resentence the appellant.
The circumstances of the offending in brief and the sentence imposed by the Judge
On 26 June 2014, the appellant stole a backpack from a passenger travelling on a suburban train. The backpack was taken surreptitiously; the passenger only realised that his backpack had been stolen when he came to leave the train at his destination. The appellant subsequently used the victim’s credit card that was in the backpack, first, at a Coles supermarket to purchase cigarettes and then at a liquor store to purchase alcohol. This conduct gave rise to the offence of theft and the two offences of deception. Because of the timing of the appellant’s pleas he was entitled to a discount not exceeding 30 per cent. For this offending the Judge indicated one penalty of 12 months imprisonment but reduced that to eight months in recognition of the early pleas.[14]
[14] As can be seen, the Judge in fact allowed 33.33 per cent. The Judge erred in this respect because the maximum discount available, given the circumstances of the pleas and according to section 10B of the Criminal Law (Sentencing) Act 1988 (SA), was 30 per cent; see the discussion in R v Deng [2015] SASCFC 176 at [47], [51]-[53].
On 3 January 2015, the appellant committed the offence of robbery (theft with violence). The 16 year old victim was alone on the Wayville Showgrounds train station platform and waiting for a train. The appellant cycled up to the victim and demanded his mobile phone. The victim refused the demand and the appellant struck him to the face. The victim ran away and was chased by the appellant who grabbed him from behind and pulled him to the ground. The appellant struck the victim during an ongoing scuffle, hit the victim in the head and kicked him in the upper chest and face. The victim broke free and ran off but the appellant caught hold of him again and demanded money. The victim gave the appellant $35. As a consequence of the assault, the victim suffered injuries to his forehead, check, side of the head, left elbow, left knee and left shoulder. No medical treatment was required. The offence committed and the circumstances of the offending as committed were plainly serious. Given the timing of the plea of guilty, the appellant was entitled to a discount of up to 40 per cent. The Judge indicated a penalty for this offending of three years imprisonment reduced from five years.
On 7 April 2015, the appellant was at his mother’s house when they argued. The appellant became upset and smashed a glass window adjacent to the front door. He also headbutted and elbowed a wall causing a large hole. The Judge indicated a penalty for this offending of six months imprisonment after allowing a discount of 30 per cent being the maximum to which the appellant was entitled. It is to be inferred that the Judge’s starting point for this offence was a shade under 8.6 months.
On 14 April 2015, the appellant committed the offence of breach of bail as a result of having tested positive for cannabis.[15] The Judge referred to this offence in the sentencing remarks but appears to have overlooked it when his Honour later came to indicate his component sentences. I will return to this shortly.
[15] Complaint filed in the Adelaide Magistrates Court AMC-15-8002 which when called up to the District Court in order for the Judge to take the plea was recorded as file number DCCRM-15-1612.
On 19 April 2015, the appellant was with his mother at her Housing Trust property. After arguing with his girlfriend on the phone the appellant again lost his temper. He threw a plate of food against the kitchen wall which caused a dent in the gyprock. He also threw a chair across the room at which time his mother, her partner and other children left the house. By the time police arrived some ten minutes later the appellant had caused further damage to the property including 13 large holes in the gyprock and dents to a heating system. The appellant had also removed his home detention bracelet and left the property at which he was obliged to reside. He was located by police the same day at about 10.15pm hiding under a bed in the home unit of an associate. This conduct gave rise to a further damage property offence and a second breach of bail offence. With respect to the former the Judge indicated a penalty of six months imprisonment after allowing a discount of 30 per cent for the early plea. Again, it is to be inferred that the starting point for this second damage property offence was also a shade under 8.6 months.
With apparent reference to the second breach of bail offence, the appellant was convicted by the Judge but without penalty. However, the Judge did not in this context specifically identify either of the 14 April 2015 or 19 April 2015 offences. Nevertheless, the District Court Record of Proceedings records both breach of bail offences as having been dealt with in the same way.
Finally, on 20 April 2015, the appellant committed the offence of assault. When in the holding cell at the Adelaide Magistrates Court and awaiting his turn to appear in court he lunged at another inmate and repeatedly punched him to the head and nose. The appellant caused this victim to fall to the floor and kicked and stomped on him whilst on the ground. Whilst some bleeding occurred the victim did not require any medical treatment. For this offence of assault, the Judge indicated a penalty of six months imprisonment after allowing a discount of 30 per cent for the early plea, again implying a starting point of a shade under 8.6 months.
Each of the offences committed after the robbery offence were committed whilst the appellant was on bail for the robbery offence; an aggravating feature. The Judge implied that all of the indicated sentences were to be treated as cumulative upon each other. The total sentence imposed after all discounts was therefore five years and two months which the Judge further reduced to reflect time spent in custody. The final head sentence imposed was five years with a non-parole period of 15 months.
The Judge did not refer to section 18A of the Criminal Law (Sentencing) Act 1988. However, the language of the sentencing remarks is consistent with the exercise of the discretion available under section 18A to impose just the one penalty for all of the offending.
The law requires that I go through in detail the reasoning behind the ultimate sentence that I impose... . In the end, however, I will express the outcome in a single clear sentence with a single non-parole period.
However, dealing with the offences chronologically, the court will adopt nominal sentences as follows:
. . . .
Therefore, Mr Kartinyeri your sentence is a single sentence of five years imprisonment, backdated to 18 April this year, with a 15 month non-parole period from 18 April this year.
Notwithstanding that the Judge intended to, and according to his sentencing remarks did, impose just the one penalty for the offending pursuant to section 18A, the District Court Record of Proceedings records the imposition by the Judge of separate sentences for each of the offences as identified on each relevant information and complaint. In addition, the Record of Proceedings records as the “head sentence” the following:
HEAD SENTENCE
Imprisonment – 5 years 2 months, reduced to 5 years for time in custody...

The Record of Proceedings makes no reference to section 18A apart from a reference in the context of the sentence of eight months “imposed” for the theft and two deception offences. It would appear, that the Associate who prepared and signed the Record of Proceedings did not appreciate that the Judge had imposed a single sentence for all of the offending. The Record of Proceedings has not been signed by the Judge.
A further indicator that the Judge intended to impose the one sentence pursuant to section 18A arises from the fact that the two months for time in custody was deducted from the total of five years and two months. Had the Judge imposed individual sentences for each offence it would have been necessary for him to allocate the two months deduction to one or more of the individual sentences imposed in order for the record to correctly identify the precise sentence imposed with respect to each offence before accumulation leading to a total period to be served. In such a case, the “head sentence” of five years (after having allowed for the two months as part of one or more of the individual sentences) would not be a sentence imposed but merely an accumulation of all of the individual sentences imposed.
Were I to be satisfied that the single penalty of five years imprisonment imposed by the Judge was not manifestly excessive so as to result in a dismissal of the appeal, I would direct that the District Court Record of Proceedings be corrected to accurately record the sentence in fact imposed by the Judge. However, this is unnecessary because, as earlier indicated, I would allow the appeal, set aside the District Court sentence and resentence the appellant.
The appellant’s personal circumstances
The appellant was born on 15 October 1993 and was 20 and 21 years of age during the period of the offending conduct. He had at the time a significant prior criminal record involving breaches of bail, minor drug offending, property damage, minor dishonesty, public order and motor vehicle offences. The appellant has committed a significant number of prior offences. However, nearly all have been as a young adult rather than as a youth. Further, the vast majority appear to have been of a minor level of seriousness given that on a large number of cases no conviction was recorded and in other cases very small fines were imposed.
The appellant’s most serious prior offending has been some damage property offences committed in 2012 for which he received a suspended sentence of four weeks imprisonment, an assault offence committed in 2012 for which he received a suspended sentence of 14 days imprisonment and an assault offence aggravated by the use of an offensive weapon committed in early 2013 for which he received a sentence of 14 months imprisonment with a non-parole period of eight months, to be served.
As part of the sentencing process, the Judge conducted an extensive Aboriginal sentencing conference in accordance with the provisions of section 9C of the Criminal Law (Sentencing) Act 1988 as a result of which a significant amount of information concerning the broader context of the appellant’s personal circumstances was obtained. In addition, a pre-sentence report was provided to the Judge.
The appellant is one of 12 children and was brought up in deprived and difficult circumstances. The appellant experienced racism and violence as he was growing up and learned to respond with violence. The appellant’s extremely difficult upbringing and troubled life to this point is comprehensively summarised by the Judge in his remarks and it is unnecessary to revisit that detail for the purposes of this appeal. It is sufficient to observe that, notwithstanding the very severe difficulties the appellant has faced in his life to this point, both personal and general deterrence must play a significant role in the fashioning of any sentence for the present offending. It is of a similar character to that previously committed but since 2012 there has been a significant escalation in the seriousness of the appellant’s criminal conduct.
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.
It was not submitted by the appellant that the indicative sentences with respect to the robbery offence (three years imprisonment reduced from a starting point of five years) and the assault offence (six months imprisonment reduced from a starting point of approximately 8.6 months) were also manifestly excessive and I express no view on this issue. Nevertheless, I take the view in all the circumstances, and particularly given that the background of the appellant and his relative youth suggests that there is still scope for leniency, that these two indicated sentences were, at the least, severe and at the high end of the available range.
I am satisfied that the three manifestly excessive components and the two severe components of the overall sentence, when taken in combination, render the head sentence of five years and two months (before allowance for time in custody) as unreasonable and plainly unjust and therefore manifestly excessive.
Another way of viewing the matter and perhaps a shorter road to this conclusion is to stand back and have regard to the course of offending as a whole. The Judge’s overall starting point before allowing for the pleas was eight years and two months imprisonment. Such a starting point before the discounts to which the appellant was statutorily entitled was unreasonably high in all the circumstances.
Resentencing
Like the Judge, I would exercise the discretion under section 18A to impose just the one sentence for all of the offending. I would impose a head sentence of three years and eight months to commence 18 April 2015, arrived at as follows. For the robbery offence, like the Judge, I would indicate three years imprisonment after allowing for the 40 per cent discount for the plea of guilty. With respect to the theft offence, the two deception offences, the two damage property offences and the assault offence each of which attracts a maximum discount of 30 per cent for the plea of guilty, I would indicate a sentence, exercising the section 18A discretion for this group, of ten months reduced from 14 months. In arriving at this starting point I have borne in mind that some partial concurrency with respect to the theft and deception offences and with respect to the two damage property offences can be justified. For the two breaches of bail offences, like the Judge, I would record convictions but impose no penalty.
This gives rise to a total term of imprisonment of three years and ten months reduced from a starting point of six years and two months. A further two months must be deducted for time served giving rise to a head sentence imposed pursuant to section 18A of three years and eight months. I would impose the same non-parole period of 15 months as did the Judge. This should allow for the appellant to spend a substantial period (as much as 29 months) on parole. It will be important that the Parole Board takes the steps it can to ensure that the appellant receives intensive supervision and professional assistance for his underlying problems.
The orders I propose are:
1.     Insofar as necessary permission to appeal be granted.
2.     The appeal be allowed.
3.     The District Court sentence be set aside.
4.For all of the offending but for the two breach of bail offences, the appellant be resentenced to the one penalty, being a head sentence of three years and eight months with a non-parole period of 15 months both backdated to commence 18 April 2015.
5.With respect to the two breach of bail offences, in each case a conviction be recorded with no further penalty.