R v KHEM - [2005] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v KHEM
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Vanstone and The Honourable Justice Anderson)
18 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FIRST OFFENDERS - SUSPENSION OF SENTENCE
Appeal against sentence - basis of appeal the failure to suspend the sentence - appellant pleaded guilty to one charge of robbery contrary to s137(1) of the Criminal Law Consolidation Act 1935 - sentenced to imprisonment for two years three months with a non-parole period of 10 months - victim of the offence was an attendant, alone at a service station at 2:25 am - appellant climbed onto the counter and kicked the attendant in the head - victim sustained a broken nose and suffered shock - mitigating factors included the age of the appellant, who had just turned 18, that this was a first offence, the appellant's contrition and his prospects for rehabilitation - sentencing Judge declined to suspend the sentence and found that in the circumstances deterrence outweighed the mitigating factors - consideration of vulnerability of such victims - Held: no error on the part of the sentencing Judge demonstrated - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s10; Criminal Law Consolidation Act 1935 s137(1), referred to.
R v Place (2002) 81 SASR 395; R v McMann (1997) 70 SASR 1; R v Blackmore [2004] SASR 298; Birch v Fitzgerald (1975) 11 SASR 114, considered.

R v KHEM
[2005] SASC 178
Court of Criminal Appeal: Bleby, Vanstone and Anderson JJ

BLEBY J I agree that the appeal should be dismissed for the reasons given by Anderson J.
There were undoubtedly factors relating to the appellant’s personal circumstances which militated in favour of suspension of the sentence. Those factors included his youth, the fact that this was a first offence, his contrition and his prospects of rehabilitation. However, this was a serious offence, carrying a maximum penalty of 15 years imprisonment. The assault was unprovoked. Indeed, the victim took steps designed to defuse the threats of the appellant by offering him one of his own cigarettes.
The consequences of the assault were very serious for the victim, and he was, at the time, extremely vulnerable, being the sole attendant at a service station at 2.25 a.m. on a weekday. People in that situation are entitled to whatever protection the law can give them. Deterrence was necessarily an important consideration in the sentencing process.
The appellant does not complain about the sentence imposed. The sentencing Judge was faced with a difficult question about suspension of the sentence. That is essentially a discretionary decision. The Judge carefully considered all the matters relevant to suspension, and rejected that as an…

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 KHEM

Details

AGLC: R v KHEM [2005] SASC 178
Case: [2005] SASC 178
Decision Date: 18 May 2005

CaseChat Overview and Summary

The appellant, Khem, appealed against his sentence following a guilty plea to a charge of robbery. The incident occurred at 2:25 am when the appellant, who had just turned 18, climbed onto the counter of a service station and kicked the attendant in the head, resulting in a broken nose and shock for the victim. The appellant's mitigating factors included his age, it being a first offence, his contrition, and his prospects for rehabilitation. Despite these factors, the sentencing judge imposed a sentence of imprisonment for two years and three months, with a non-parole period of 10 months, and declined to suspend the sentence. The appellant argued that the judge erred in not suspending the sentence, given the mitigating factors.

The legal issue before the court was whether the sentencing judge erred in not suspending the sentence despite the mitigating factors presented. The court had to consider whether the judge appropriately balanced the need for deterrence against the mitigating factors and whether the sentence imposed was excessive or inappropriate in the circumstances.

The court held that there was no demonstrated error on the part of the sentencing judge. The judge had appropriately considered the need for deterrence given the vulnerability of the victim, who was alone and at risk at the time of the offence. The court noted that while the appellant's age, first offence status, contrition, and prospects for rehabilitation were significant mitigating factors, the gravity of the offence and the need to protect similar victims outweighed these considerations in this case. The court found that the sentence was not excessive and that the judge had correctly exercised their discretion.

Accordingly, the appeal was dismissed, and the original sentence stood.

Orders