R v KUHAR

[2015] SASCFC 173

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KUHAR

[2015] SASCFC 173

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Lovell)

20 November 2015

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

Application for permission to appeal against sentence(s).

In October 2010, the applicant was sentenced having pleaded guilty to a number of offences for which the sentencing Judge imposed a total sentence of four years, six months and two weeks imprisonment. A non-parole period of two years and nine months was imposed. The sentencing Judge suspended the sentence on the applicant entering into a bond of $100 to be of good behaviour for three years.

In November 2014, the applicant pleaded guilty and was sentenced for a number of minor offences. The offending breached the suspended sentence bond imposed in 2010. The sentencing Judge utilised section 18A of the Sentencing Act and imposed one sentence of nine months imprisonment, reduced from 12 months on account of guilty plea. The sentencing Judge also estreated the bond and ordered that the sentence of nine months be served cumulatively, resulting in a head sentence of five years, three months and two weeks. The non-parole period was extended to two years and 11 months.

On appeal, the applicant complained that the sentence(s) imposed by both District Court Judges were manifestly excessive. The respondent conceded that the 2010 sentence imposed was manifestly excessive. In relation to the 2014 sentence, no contrary submissions were put to the Court by the respondent on manifest excessiveness. Given that concession the applicant had to be re-sentenced.

Held per the Court (granting permission to appeal and allowing the appeal):

1.  An extension of time to appeal against the sentence imposed on 13 November 2014 is granted.

2.  The sentence is manifestly excessive.

3.  The sentence is set aside and the applicant re-sentenced to four months and two weeks imprisonment.

4.  The breach of the bond imposed on 29 October 2010 is excused.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Jongewaard [2009] SASC 346, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"manifestly excessive"

R v KUHAR
[2015] SASCFC 173

Court of Criminal Appeal:       Sulan, Peek and Lovell JJ

THE COURT

1. On 13 November 2014 the applicant was sentenced to a term of imprisonment of nine months. The sentencing Judge using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) imposed one sentence for a number of relatively minor offences. That offending breached a suspended sentence bond that had been imposed upon the applicant for more serious offending on 29 October 2010. The Judge estreated that bond and revoked the suspended sentence. The Judge ordered that the sentence of nine months imposed was to be served cumulatively on the sentence of four years, six months and two weeks that had been imposed in 2010. The final sentence to be served was five years, three months and two weeks and the Judge imposed a non-parole period of two years and 11 months. The Judge also disqualified the applicant from holding or obtaining a driver’s licence for a period of three years from the date of his release from prison.

2. On 31 July 2015 the applicant sought permission to appeal against the sentence imposed on 13 November 2014 and by a separate notice of appeal, sought permission to appeal against the sentence imposed on 29 October 2010. Both appeals were out of time, the latter substantially so.

3. The applicant is now 32 years of age. His early life was chaotic. His father had a drug addiction and his family life was such that he left home at the age of 14. The applicant left school without completing Year 9 and he has difficulty with learning. Medical reports tend to demonstrate that the applicant has a mild intellectual disability.

4. The Judge sentenced him on 13 November 2014. She had before her a number of reports, the most recent being from Dr Nambiar, the psychiatrist, that report being dated 27 October 2014. Dr Nambiar noted the applicant’s unfortunate background and considered that he had developed an antisocial personality. He was of the opinion that the applicant had significant learning difficulties due to his low average IQ and problems with generalised anxiety with panic attacks and social phobia.

5. Dr Nambiar noted that the applicant had a problem with benzodiazepines and had little insight into his problems. Dr Nambiar was of the view that there was no connection between the applicant’s offending behaviour and his mental health diagnosis, but rather the connection lay with his antisocial personality disorder.

6. A psychological report from 2010 demonstrated that the applicant’s verbal skills were equivalent to the average child aged 12 years and eight months and his non-verbal skills were equivalent to the average child aged seven years and six months. His functional literacy was approximately equivalent to a child in the middle years of primary school.

7. The psychologist reported that the applicant met the diagnostic criteria for a diagnosis of borderline intellectual functioning.

8. On 16 October 2009, the applicant, in company with another person, broke into the premises of a car dealer and stole a 32 inch flat screen television. When the police searched his premises they located the television. The police also located a 42 inch plasma television which had been stolen on 16 October 2009 from business premises at Melrose Park.

9. The applicant pleaded guilty to one count of aggravated serious criminal trespass in non-residential premises and theft of a 32 inch TV, in addition to one count of unlawful possession of a 42 inch plasma TV. He was sentenced on 29 October 2010. On that day the Judge also had sentenced the applicant for a number of summary offences. They included one count of theft, cultivating two cannabis plants, possessing prescribed equipment, breaching bail and resisting police. The Judge also estreated the bond for the offence of drive whilst disqualified and imposed a penalty of two weeks imprisonment. The final sentence imposed by the Judge was four years, six months and two weeks, with a non-parole period of two years and nine months. The Judge suspended that sentence on the applicant entering into a bond of $100 to be of good behaviour for three years. The Judge also ordered forfeiture of the prescribed equipment and drugs.

10. Counsel for the Director of Public Prosecutions (“DPP”) in this appeal indicated that the Court may wish to review that sentence as being manifestly excessive. In arriving at the final sentence, the Judge indicated that for the offences of failing to comply with a bail agreement, theft, resist police and possession of prescribed equipment, he would have imposed an 18-month sentence of imprisonment, after deducting six months for the plea of guilty. Counsel for the DPP in effect conceded that this was an error as the Judge had imposed a fine of $250 for the cultivation of the cannabis offence and to impose an additional penalty for possession of prescribed equipment, results in the sentence being manifestly excessive. He submitted that the sentence, ignoring the error, may have been manifestly excessive.

11. Had it not been for the lapse of time that has occurred in this case, we would have interfered with that sentence. However, given the lapse of time and the fact the applicant has now served a period of the suspended sentence bond, we do not consider it appropriate to interfere with that sentence, because to do so would result in the applicant having to enter into a further bond and we do not think in this case, for the reasons which follow, that would be appropriate. We therefore decline to interfere with that sentence.

12. In relation to the sentence imposed on 13 November 2014 the applicant pleaded guilty to cultivating nine cannabis plants, possession of prescribed equipment in relation to that cultivation, possession of a prohibited weapon, namely a crossbow, unlawful possession of a road work sign and driving a motor vehicle when not authorised to do so. In addition, he pleaded guilty to the offence of breaching bail. He acknowledged before the sentencing Judge that the offending, which occurred intermittently throughout the period of the bond, breached the terms of the bond imposed on him on 29 October 2010.

13. Whilst there were a number of grounds of appeal advanced by the applicant there was only one other of any substance, namely whether the sentence imposed on 13 November 2014 was manifestly excessive. As mentioned, the Judge, using s 18A of the Sentencing Act, started at a sentence of 12 months imprisonment, reduced to nine months imprisonment, taking into account the plea of guilty.

14. The principles relating to an appeal alleging that a sentence is manifestly excessive are well established. In R v Jongewaard,[1] Doyle CJ said:

    The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:

    “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 (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? Has there been some error of principle? (Has the sentence 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’”.

    [1] [2009] SASC 346.

15. As mentioned earlier, the Judge, using s 18A of the Sentencing Act, started with a sentence of imprisonment of 12 months and reduced that to nine months imprisonment to take into account the applicant’s plea of guilty. The offending could only be described as minor. It can be accepted that some of the offences were more serious than others. There was no suggestion that the cultivation of the cannabis plants had any commercial element to it. The initial possession of the crossbow by the applicant was lawful, but he did not dispose of it when possession of such an item became unlawful. The unlawful possession of a road sign, as stated by the Judge during the course of submissions, was minor. Unauthorised driving on the road was conduct giving rise to the breach of bail offence.

16. The Judge correctly noted the defendant’s history, including a number of medical reports that had been tendered, including the most recent report of Dr Nambiar, to which we have earlier referred. The Judge noted the applicant’s long history of mental health issues, his learning difficulties at school, his generalised anxiety and what was referred to as his antisocial personality disorder.

17. The applicant was not able to point to any specific error of the Judge when arriving at the sentence. This Court can only interfere if error is demonstrated. It cannot interfere merely because it has a different view than the sentencing Judge about the most appropriate sentence. In the circumstances of this case the Court can only interfere if the sentence is plainly unreasonable or unjust.

18. In our view, the applicant has established the sentence is manifestly excessive. We form the view that the sentence of 12 months, reduced to nine months for a plea of guilty, was outside the range of sentences for the offending earlier described. We consider the sentence was unreasonable.

19. Accordingly, the applicant must be re-sentenced. That also includes reconsideration of whether to estreat the bond relating to the suspended sentence imposed on 29 October 2010. Utilising s 18A, had it not been for the applicant’s plea of guilty we would have imposed a sentence of six months imprisonment. To take into account his plea, for which he was entitled to a discount of up to 30 per cent, we would impose a sentence of four months and two weeks imprisonment.

20. The applicant has been in custody since 6 November 2014. That is a relevant factor when looking at whether the bond should be estreated. He has served, of course, the sentence we have just imposed.

21. Given the minor nature of the offending which breached the bond and the consequences to the applicant if the bond is estreated, in our view proper reasons exist to excuse the breaches of the bond. The bond has expired. Given that the applicant has been in custody since 6 November 2014, we see no reason to have the applicant enter into a fresh bond for a further period.

22. The order of the Court is that in respect of the appeal against the sentence imposed by the District Court Judge on 13 November 2014, we grant an extension of the time within which to appeal. We grant permission to appeal. We allow the appeal, set aside the sentence imposed and substitute a sentence of four months and two weeks imprisonment to date from 6 November 2014.

23. We note that the applicant has served that sentence. We decline to estreat the bond in respect of the sentence imposed on 29 October 2010 for the reasons earlier given.