R v Koch

Case [2015] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KOCH

[2015] SASCFC 31

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)

27 March 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

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 - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY

Crown application for permission to appeal against sentence. The defendant (respondent) pleaded guilty to offences of aggravated serious criminal trespass in a place of residence, causing serious harm with intent to cause serious harm and using a motor vehicle without consent. The defendant was sentenced in the District Court to imprisonment for four years and six months with a non-parole period of two years and three months.

Whether permission to appeal against sentence should be granted. Whether the sentence imposed was manifestly inadequate.

Held (Parker J; Kourakis CJ and Bampton J agreeing):

Permission to appeal granted and appeal upheld. The sentence imposed was disproportionate to the gravity of the defendant’s conduct and failed to adequately recognise the very high degree of brutality involved. General deterrence is a very important consideration in sentencing for offences of violence committed in the course of domestic disputes. A sentence of imprisonment for six years and eight months and concurrent sentence of imprisonment for three years, with a non-parole period of four years and two months, should be imposed.

Criminal Law Consolidation Act 1935 s 170(1)(b), s 23(1)(a), s 86A, s 340; Criminal Law (Sentencing) Act 1988 s 18A, s10C; Road Traffic Act 1961 s 169B, referred to.
R v Parenzee (2007) 101 SASR 456; R v Milton [2009] SASC 44; House v The King (1936) 55 CLR 499; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; Comcare v PVYW (2013) 250 CLR 246; R v Nemer (2003) 87 SASR 168; R v Payne (2004) 89 SASR 49; Griffiths v The Queen (1977) 137 CLR 293; DPP (Vic) v Bright (2006) 163 A Crim R 538; Malvaso v The Queen (1989) 168 CLR 227; R v Abdulla (2005) 93 SASR 208; R v Kong (2013) 115 SASR 425; Hili v The Queen (2010) 242 CLR 520; R v Siozios (2004) 236 LSJS 88; R v McPartland (2014) 120 SASR 69; R v Shannon (1979) 21 SASR 442, considered.

R v KOCH
[2015] SASCFC 31

Court of Criminal Appeal:  Kourakis CJ, Bampton and Parker JJ

  1. KOURAKIS CJ:    I would allow the appeal for the reasons given by Parker J.

  2. BAMPTON J:       I would allow the appeal.  I agree with…

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R v Koch [2015] SASCFC 31
Case
[2015] SASCFC 31
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Director of Public Prosecutions (DPP) against a sentence imposed on the respondent, Mr. Koch, by a sentencing judge. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Bampton and Parker JJ. The dispute arose from the sentencing judge's decision regarding the commencement date of a mandatory 12-month driver's licence disqualification and the quantum of a discount applied for a guilty plea.

The primary legal issues before the court were whether the sentencing judge erred in ordering the 12-month licence disqualification to commence from the date of sentencing, contrary to the provisions of section 169B of the Road Traffic Act 1961, which mandates calculation from the date of release from imprisonment. Additionally, the court was required to determine if the 25% discount applied for the guilty plea was excessive, given the maximum available discount for the offences committed, and if the overall sentence was so disproportionate to the gravity of the respondent's conduct as to warrant intervention on a Crown appeal.

The Full Court reasoned that the sentencing judge had erred in law by ordering the disqualification period to commence from the date of sentencing, as section 169B of the Road Traffic Act 1961 clearly stipulated that such periods are to be calculated from the date of release from imprisonment. Furthermore, the court found that the 25% discount for the guilty plea exceeded the permissible maximum for the most serious offence, particularly when considered alongside the inevitability of a guilty plea in the circumstances. The court applied the principles governing Crown appeals against sentence, acknowledging that permission to appeal would be granted where there was an arguable error of law and that such appeals would only succeed in rare and exceptional circumstances where public policy considerations outweighed the principle against placing a person's liberty twice in jeopardy. The court determined that the original sentence was so far below an appropriate standard, failing to adequately recognise the callousness and brutality involved, that it would shake public confidence in the administration of justice.

Consequently, the Full Court granted permission to appeal and upheld the DPP's appeal. The court imposed a sentence of six years and eight months imprisonment for the offence of causing serious harm with intent, after applying a 20% discount for the guilty plea, and a concurrent sentence of three years for aggravated serious criminal trespass. A non-parole period of four years and two months was fixed, backdated to the date of the respondent's custody. The court also ordered that the 12-month licence disqualification commence from the respondent's release from prison.

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

The discount of 25% given by the sentencing judge exceeded the maximum available discount for the most serious offence of which the defendant was convicted. That fact combined with the inevitability of a guilty plea indicates that the discount of 25% was given in error. I would apply a discount of 20%.Conclusion I consider that the sentence imposed was disproportionate to the gravity of the defendant's conduct and failed to adequately recognise the very high degree of callousness and brutality involved. The sentence was so far below an appropriate standard that to allow it to stand would shake public confidence in the administration of justice. I would grant permission to appeal and uphold the appeal by the Director. The most serious of the offences of which the appellant was convicted is the offence of causing serious harm with intent. On that offence, I would impose a sentence of eight years and four months. I would reduce that sentence by 20 per cent for the respondent’s plea of guilty to a sentence of six years and eight months. I would impose a concurrent sentence of three years on the offence of aggravated serious criminal trespass. I would fix a non-parole period of four years and two months backdated to 11 August 2013 when the defendant was taken into custody after surrendering to the police. For the reasons I have given at paragraph 19 I consider that the 12 months disqualification should have been ordered to run from the time the defendant is released from prison. I would make an order to that effect.

Ratio Decidendi

Legal Principle Established

The judge ordered that the disqualification period of 12 months from holding or obtaining a driver's licence made mandatory by s 86A(2) of the Criminal Law Consolidation Act 1935 was to commence from the date of the sentencing remarks. Section 169B of the Road Traffic Act 1961 provides that the period of disqualification is to be calculated on the basis that the period commenced upon the person’s release from imprisonment. Thus, the 12 months disqualification should have been ordered to run from the time the defendant is released from prison.Consideration The maximum sentence for the offence of aggravated serious criminal trespass in a place of residence is imprisonment for life while the offence of causing serious harm attracts a maximum penalty of twenty years imprisonment. The penalty provided for illegal use of a motor vehicle is imprisonment for two years with a mandatory licence disqualification of one year.Permission to appeal The Solicitor-General appeared as counsel for the DPP. He submitted that, broadly speaking, permission to appeal will be granted where it is reasonably arguable that the impugned sentence is infected by error.[4] Because the proposed appeal is from a discretionary sentencing decision, the error must be of the type identified in House v The King.[5] [4] R v Parenzee [2007] SASC 316 at [22]; (2007) 101 SASR 456 at 461; R v Milton [2009] SASC 44 at [7].[5] [1926] HCA 40; (1936) 55 CLR 499. See also Lacey v Attorney-General (Qld) [2011] HCA 10 [11] – [15]; (2011) 242 CLR 573 at 579 – 581. While the authorities referred to by the Solicitor-General[6] dealt with the grant of permission to appeal against conviction, there is no reason to adopt a different approach in relation to permission to appeal against sentence. Of course, that observation is subject to the additional requirement that in the case of a Crown appeal against sentence the rare and exceptional circumstances test will apply.[7][6] R v Parenzee [2007] SASC 316; (2007) 101 SASR 456 and R v Milton [2009] SASC 44.[7] See Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 303 (Brennan, Deane, Dawson and Gaudron JJ). The Solicitor-General submitted, correctly in my opinion, that in addition to establishing an error of the type identified in House v The King, the court must be persuaded that there are public policy considerations that outweigh the public interest in protecting persons from having their liberty twice placed in jeopardy. That principle is often sought to be summarised by the statement that a Crown appeal against sentence will only be allowed in rare and exceptional circumstances. Phrases used in judgments such as “rare and exceptional circumstances”[8] and “shock the public conscience”[9] may provide a convenient shorthand description of a wider principle. However, words used in a judgment cannot be applied as if they were enacted in a statute.[10] Care must always be taken to identify with precision the underlying principle that such aphorisms seek to summarise. [8] Ibid at 299 [6].[9] R v Osenkowski (1982) 30 SASR 212 at 212 – 213 (King CJ).[10] Comcare v PVYW [2013] HCA 41 at [12] – [16]; (2013) 250 CLR 246 at 255 – 256 (French CJ, Hayne, Crennan and Kiefel JJ).