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

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…

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 KUHAR

Details

AGLC: R v Kuhar [2015] SASCFC 173
Case: [2015] SASCFC 173
Decision Date: 20 November 2015

CaseChat Overview and Summary

The case of *R v Kuhar* concerned an appeal against a conviction for the offence of dangerous driving occasioning death. The appellant, Mr Kuhar, was convicted in the District Court of Queensland following a trial by jury. The prosecution alleged that the appellant's driving was dangerous and that this dangerous driving caused the death of another road user.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in law by failing to adequately direct the jury on the element of causation. Specifically, the appellant argued that the jury should have been instructed that they needed to be satisfied beyond reasonable doubt that the appellant's dangerous driving was a "substantial or significant cause" of the death, rather than merely a cause. The court also considered whether the jury's verdict was unsafe and unsatisfactory in light of the evidence.

The Court of Appeal, in allowing the appeal, held that the trial judge's directions on causation were insufficient. Applying established principles of criminal law, the court reiterated that for a conviction under section 328A(2) of the *Criminal Code* (Qld), the prosecution must prove beyond reasonable doubt that the dangerous driving was a cause of the death. While the judge had directed the jury that the driving had to be "a cause", the court found that this direction lacked the necessary specificity to ensure the jury understood the required causal link. The court emphasised that the jury should have been guided to consider whether the dangerous driving was a substantial or significant contributing cause, or at least a cause that was more than a trivial or fleeting one.

Consequently, the Court of Appeal found the conviction to be unsafe and unsatisfactory due to the inadequate directions on causation. The court ordered that the conviction be quashed and that a new trial be held.

Orders