SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KLOSS
[2020] SASCFC 88
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Hughes)
10 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
Crown application for permission to appeal against sentence.
The respondent was sentenced on 1 April 2020 to two counts of aggravated robbery. The first count was committed on 2 May 2019 when the respondent robbed a gaming room with a sawn-off shotgun. The second count was committed on 4 May 2019 when the respondent robbed a gaming room at a different location with a sawn-off shotgun and in the company of another person. Following the application of sentencing discounts and after accounting for time in custody, the sentencing judge imposed a single sentence for both counts of 5 years, 7 months and 6 days of imprisonment and imposed a non-parole period of 4 years, 5 months and 22 days which was four-fifths of the head sentence.
The Director sought permission to appeal on the ground that the sentence imposed was manifestly inadequate. The Director contended that the sentencing judge:
- mischaracterised the two counts as requiring wholly concurrent sentences;
- disregarded the sentencing standard of six to eight years for a single offence of aggravated robbery; and
- did not adequately account for particular characteristics of the offending such as the fact that the respondent was not a first offender, the offending was premediatated, the seriousness of the offending, and the need for general deterrence and the protection of the community; and
- did not adequately account for particular characteristics of the offender such as the respondent’s poor rehabilitation prospects and the need for personal deterrence.
The respondent contended that although the starting point of 8 years in total for both counts was on the lower end of the scale, it was not manifestly inadequate as the sentencing judge had accounted for all the relevant circumstances of the offences and clearly had regard to the sentencing standard of six to eight years.
Held per Hughes J (with Peek and Nicholson JJ agreeing), refusing permission to appeal and dismissing the application:
1. The sentencing judge did not err in applying concurrency to the sentence imposed; and
2. The sentence imposed is not manifestly inadequate as it is within the penumbra of sentences that can properly be imposed for this type of offending.
Sentencing Act 2017 s 26, s 52; Criminal Procedure Act 1921 s 157(1)(a)(iii); Criminal Law Consolidation Act 1935 s 137, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R…
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CaseChat Overview and Summary
The legal issues before the court were whether the sentence imposed was plainly inadequate and, if so, how the principles governing Crown appeals against sentence should be applied. The court was required to consider the established criteria for appellate intervention in sentencing, particularly in cases of alleged manifest inadequacy, and the principles for maintaining adequate standards of punishment and public confidence in the administration of justice.
The court affirmed that an allegation of manifest inadequacy is a statement of conclusion, requiring the appellate court to effectively repeat the sentencing task to determine if the original sentence fell outside the permissible range. It reiterated that the phrase "shock the public conscience" is no longer the preferred descriptor for manifest inadequacy. Instead, the focus is on whether the sentence is so disproportionate to the seriousness of the crime as to require intervention. The court also emphasised the importance of consistency in sentencing, meaning like cases are treated alike and different cases differently, through the consistent application of legal principles. This consistency is not achieved through numerical equivalence but through the careful analysis of comparable cases to identify sentencing patterns and ranges, guiding appellate courts to intervene only when there has been a misapplication of principle.
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
Finally, the respondent submitted that, in the exercise of its residual discretion, this Court should dismiss the appeal whilst expressing its views as to such matters of principle that the case invited.Consideration In Peet v R, Kourakis CJ described the nature of the allegation of manifest inadequacy of sentence as follows:[14]In Dinsdale v The Queen Gleeson CJ and Hayne J observed that manifest inadequacy was a statement of conclusion that did not depend upon attribution of error. A sentence was either plainly inadequate or not plainly inadequate. Accepting this, it follows that to determine whether a sentence is or is not plainly inadequate, it is necessary to, in effect, repeat the sentencing task undertaken by the sentencing judge and, doing so, consider whether the sentence imposed by the judge did not lie within the permissible range such that it may be said to be plainly inadequate. Thereafter, if error is established, this being a Crown appeal, the Everett principles, the effect of which is summarized in the passage taken from R v Lean above, must be applied.(footnotes omitted) [14] [2018] SASCFC 91 at [6]. It was once common to describe that manifest inadequacy as having been established where the sentence was such as to “shock the public conscience”. In more recent times, that phrase has been eschewed: R v Siozios,[15] R v Nedza,[16] R v McPartland & Polkinghorne.[17] Rather, the preferable approach is that taken by this Court constituted by five Judges in R v Payne in which Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ said in a joint judgement:[18]The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffıths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213.(emphasis added)[15] [2004] SASC 299.[16] [2013] SASCFC 142 at [65].[17] [2014] SASCFC 84.[18] (2004) 89 SASR 49 at [86]. The adequacy of the punishment can be reviewed against sentencing standards established from time to time by the Court. In R v Pham, French CJ, Keane and Nettle JJ summarised the purpose of sentencing standards as follows:[19][19] (2015) 256 CLR 550 at [26]-[28].... As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, second, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence. ...Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently. (2) The consistency that is sought is consistency in the application of the relevant legal principles. (3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.(footnotes omitted)