R v LEONARD-KHALIL - [2008] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEONARD-KHALIL
[2008] SASC 78
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice David and The Honourable Justice Kelly)
17 March 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appellant pleaded guilty to three offences arising out of a break-in - victim returned home - appellant brandished a screwdriver and held it in a threatening manner towards victim - appellant pleaded guilty to aggravated threat to cause harm only after prosecution decided not to allege threatening words were spoken by the appellant as he held the screwdriver - appellant sentenced to three years and three months imprisonment with a non-parole period of 18 months - whether sentence manifestly excessive - whether sentence should have been suspended - whether sentencing judge gave insufficient discount for the pleas of guilty.
Held: In deciding what would be the appropriate discount the sentencing judge was correct in taking into account the circumstances in which the late plea of guilty was entered - no specific error identified - sentence not unreasonable or plainly unjust - sentencing judge acted correctly in taking the appellant's use of the screwdriver into account when deciding not to suspend sentence - appeal dismissed.
Markarian v R (2005) 228 CLR 357, discussed.

R v LEONARD-KHALIL
[2008] SASC 78
Court of Criminal Appeal: Duggan, David and Kelly JJ

DUGGAN J. The appellant pleaded guilty to aggravated threat to cause harm, aggravated serious criminal trespass in an unoccupied residence and dishonestly taking property without the owner’s consent. He was sentenced to one penalty for all offences. The sentence imposed was imprisonment for three years and three months. A non-parole period of 18 months was imposed.
It was argued on appeal that the sentence was manifestly excessive and that any sentence of imprisonment should have been suspended.
The offences arose out of the same incident which took place at Unley Park on 18 May 2006. Shortly after 1.00 pm the victim returned to her home with her two year old son. She was confronted by two youths who had broken into her house and were still inside. The appellant was one of them. He brandished a screwdriver and held it in a threatening manner towards the victim. She ran to her vehicle and drove off.
The appellant and his accomplice, who was dealt with in the Youth Court, gained entry to the premises by cutting a fly screen and entering through a window.
Property had been moved within the house including a Foxtel receiver, two video-recorders, a video camera, two televisions and a DVD player. This was done with the intention of later removing them from the house.
The appellant was 18 years of age at the time of the offences. He left school at the age of 17 and has had limited employment since then. Prior to the commission of this offence, he had been dealt with in the Youth Court for carrying an offensive weapon and assault. He has not previously been sentenced to a term of imprisonment.
A psychological report prepared by Dr Jack White was tendered at the sentencing hearing. It stated that the appellant had a difficult childhood and that his father was frequently in gaol, but that the appellant has a good relationship with his mother.
Dr White assessed the appellant as being within the borderline range of intellectual functioning. He was also of the view that the appellant satisfied the diagnostic criteria for attention deficit hyperactivity disorder, adjustment disorder with mixed anxiety, borderline personality disorder and antisocial personality disorder. He said that the current assessment indicated that the appellant had significant problems in relation to anxiety, anger management and impulsiveness. Dr White recommended various forms of treatment.
The victim impact statement records that the victim has suffered considerable stress as a result of the offending and it has made a significant impact on her approach to life.
The appellant entered a late plea of guilty in the District Court to the charge of aggravated threat to cause harm. He had already pleaded guilty to the other charges in the Magistrates Court.
The sentencing judge chose as a starting point a sentence of imprisonment for four years. He then allowed for a reduction of nine months for the pleas of guilty.
In arguing that the sentence was manifestly excessive, counsel for the appellant complained that insufficient reduction was made for the pleas of guilty.
The sentencing judge said in his remarks that the discount which he allowed was a little less than usual because of the late plea of guilty to the threatening harm count. This charge had been set down for hearing, but when it was not reached in the trial list the appellant pleaded guilty. There had been discussions between counsel for the appellant and counsel for the Director of Public Prosecutions in relation to a dispute over the words which the victim alleged were uttered by the appellant as he held the screwdriver in his hand. The victim said in her statement that the appellant threatened to stab her with the screwdriver.
The eventual plea of guilty to the offence of aggravated threat to cause harm was entered once the prosecution decided not to allege that these words were spoken.
The reduction for the pleas of guilty was approximately 18 per cent. The evidence in the case was quite strong. The appellant had parked his vehicle a few houses away from the victim’s house and he left it there when he ran from the house. The police found it with the keys in the ignition and noted that the engine was warm. The appellant left personal identification in the vehicle. Fingerprint evidence linked the appellant to the scene and he made admissions that he was present.
When deciding what would be the appropriate discount, I think the sentencing judge was correct in taking into account the circumstances in which the late plea of guilty to the charge of threatening to cause harm was entered. In any event, the evidence on all charges was very strong and this is a further factor which is relevant to the appropriateness of the discount for the pleas of guilty.
The argument that the sentencing judge erred in his approach to the reduction in sentence for the pleas of guilty should be rejected.
In my view the sentence was not manifestly excessive. The sentencing judge was entitled to attach significance to the brandishing of the screwdriver. It is clear that the appellant acted in a threatening manner. Furthermore, he was on bail at the time of these offences in respect of other matters including carrying an offensive weapon and assaulting police. He has since been dealt with for those offences. A few months before the commission of the present offences, he had been dealt with for carrying an offensive weapon and common assault. The sentencing judge showed some leniency in the fixing of the non-parole period. However, the head sentence reflects the seriousness of the offending and its consequences for the victim.
In the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v R[1] their Honours referred to the approach to be taken when considering appeals against sentence. They said:
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[2] itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer 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] (2005) 228 CLR 357 at [25].
[2] (1936) 55 CLR 499.
In my view, no specific error has been identified in the present case in relation to the fixing of the head sentence and the non-parole period. Furthermore, I do not think the sentence is unreasonable or plainly unjust.
It was further argued that the sentencing judge erred in failing to suspend the sentence.
It is clear that his Honour gave consideration to this sentencing option. He said:
I turn then to the question of suspension. You cannot be regarded as a first offender, but I have regard to your age and the fact that this is your first really serious offending. Even so, the nature of that offending and your professed motivation for it are concerning, indeed. I am mindful of your contrition and the steps that you have taken towards rehabilitation, and they go to your credit. However, your use of the screwdriver to threaten the householder causes me the gravest misgivings.
In the end, I have been unable to find good reason to suspend your sentence and I decline to do so, but I will give you the opportunity to show that you can rehabilitate yourself by fixing a non-parole period that is more lenient than you would ordinarily expect.
In support of the argument in relation to suspension, the appellant’s counsel submitted that his Honour fell into error in the way in which he dealt with the appellant’s use of the screwdriver. It was pointed out that the appellant took the screwdriver into the house thinking that there was no-one inside. It was said that he did not intend to use it as a weapon and, according to the written submissions of counsel for the appellant, the use of the screwdriver was “a gesture in the course of escape”.
It was conceded on behalf of the appellant during the sentencing submissions that the appellant brandished the screwdriver in a threatening manner. This was a serious aspect of the offending which appears to have contributed significantly to the victim’s terrifying experience.
In my view, the sentencing judge acted correctly in taking this circumstance into account as one of the matters relevant to his decision not to suspend the sentence.
In support of his argument that the sentence should have been suspended, counsel for the appellant relied particularly on the appellant’s youth, his limited history of offending, the report of the psychologist, the appellant’s remorse and the steps he has made towards rehabilitation. However, all of these matters were referred to by the sentencing judge in his sentencing remarks. It is clear that he had regard to them in fixing the term of imprisonment and in deciding not to suspend it. These factors were clearly relevant to the exercise of the discretion to suspend the sentence, but when taken into account along with the nature of the offending, they did not necessarily require an exercise of the discretion in favour of the appellant.
In my view, it has not been demonstrated that the sentencing judge erred in deciding not to suspend the sentence. It is not for this court to interfere with that decision in the absence of error.
I would dismiss the appeal.
DAVID J. I agree that the appeal should be dismissed for the reasons given by Duggan J.
KELLY J: I agree that this appeal should be dismissed for the reasons given by Duggan J.