R v Nekic - [2008] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NEKIC
[2008] SASC 81
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
17 March 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Application for permission to appeal against sentence - appellant convicted of two counts of non-aggravated serious criminal trespass and theft - one count of attempted robbery - one count of breach of bail conditions - permission to appeal refused.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

R v NEKIC
[2008] SASC 81
Court of Criminal Appeal; Doyle CJ, Duggan and Vanstone JJ

DOYLE CJ: This is an application for permission to appeal against a sentence imposed by the District Court. A Judge of this Court refused permission to appeal. Mr Nekic has asked that his application for permission to appeal be considered and determined by the Full Court.
The Court has heard submissions in support of the application for permission. The Court also has before it the sentencing remarks of the District Court Judge, material that was before the Judge and other relevant materials.
The submission in support of the application is that the Judge erred in failing to suspend the sentence that he imposed.
Mr Nekic came before the District Court for sentence in respect of four separate matters.
First, in October 2004, he broke into premises at Keswick, smashing a window to gain access. He stole stock from those premises valued at almost $7000. This conduct resulted in a charge of non-aggravated serious criminal trespass and a charge of theft. Each offence attracted a maximum punishment of imprisonment for ten years.
Mr Nekic was apparently identified at a later stage by a DNA match based on blood that he left at the scene.
The next offences were committed on 9 March 2007. Mr Nekic broke into a hotel by smashing a glass panel on a door and stole bottles of alcohol and other items from the hotel. The items taken were valued at approximately $730. This conduct gave rise to charges of non-aggravated serious criminal trespass and theft. Again, each offence attracted a maximum penalty of imprisonment for ten years.
Mr Nekic was arrested very shortly after committing this offence and was granted bail. A condition of bail was that he remain at home between 10.00 pm and 6.00 am.
Despite that, on 21 April 2007, at a time when he should not have been out and about, and so was in breach of the bail condition, he attempted to rob a young woman of her handbag by approaching her from behind and by grabbing the handbag. This was at about 2.00 am. The victim, Ms Marshall, held onto the bag despite Mr Nekic’s attempts to wrench it from her. She fell to the ground, and such was the force with which he grabbed the bag, was dragged along the ground. She suffered some bruising and other minor injuries. Although the injuries were not serious, this was a very frightening incident. The Victim Impact Statement indicates that she now has had trouble sleeping and feels nervous at night and when walking alone. The incident has obviously had a significant effect on her. This offence gave rise to a charge of attempted robbery which attracts a maximum punishment of imprisonment for ten years.
Mr Nekic was also charged with breaching his bail agreement. That attracts a maximum punishment of imprisonment for two years. Mr Nekic pleaded guilty to all offences and at an early stage.
The Judge accepted that when the offences were committed Mr Nekic was affected by alcohol. The witness statements relating to the attempted robbery support this submission. The police officer who arrested Mr Nekic did not question him having regard to the fact that he was significantly intoxicated.
Mr Nekic was 25 years of age when sentenced. He had a significant number of convictions for driving offences. They were sufficiently numerous and serious for him to have been sentenced to imprisonment in January 2006. He had been convicted of common assault in February 2006 and placed on a bond to be of good behaviour for 12 months. He did not breach that bond. The Judge accepted that Mr Nekic had been affected by alcohol when he committed the offences. He noted that Mr Nekic had apologised to Ms Marshall for what he did to her.
The Judge recorded the submission to him that Mr Nekic was no longer drinking alcohol or abusing other drugs. He had employment. He had reunited with his de facto partner and two young children. They were dependent on him. On that basis the Judge was urged to find that Mr Nekic’s prospects of rehabilitation were good and to suspend any sentence of imprisonment.
My impression is that the Judge accepted in substance the submissions as to Mr Nekic’s circumstances. However, he added that Mr Nekic appeared to have an alcohol problem and to suffer from depression and said that, although Mr Nekic was not misusing alcohol when he came before the Judge, that did not mean that there was no danger of relapse. He commented that Mr Nekic needed professional assistance in that respect.
Those observations cannot be criticised. They are warranted by the matters before the Judge. The Judge rightly said that he had to have regard to both general and personal deterrence. He rightly said that the offences were serious. The Judge exercised the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single sentence.
He accepted that the pleas of guilty reflected genuine contrition. He said for that reason he had reduced the head sentence and non-parole period by about 30 per cent. That was a very substantial reduction. He imposed a sentence of imprisonment of three years and six months. His starting point, before the 30 per cent reduction, must have been a head sentence of five years. The Judge fixed a non-parole period of 18 months. The Judge declined to suspend the sentence, saying that the offending, and in particular the attempted robbery, was too serious for him to follow that course.
In my opinion the head sentence and the non-parole period are not open to any criticism. The Judge was dealing with three separate incursions into crime. They were well separated. Each of the three events represented serious criminal conduct. The offences are of a prevalent kind, and general deterrence was a significant consideration.
Even if it were thought that the starting point was heavy, the reduction for the plea of guilty and contrition was generous. Without going into the circumstances, it is clear in relation to each offence that the prosecution case was very strong, indeed overwhelming.
No criticism can be made of the non-parole period, and Mr Fardone did not make any in his submissions.
That leaves the question of whether the Judge erred in failing to suspend the sentence. This Court can interfere only if, in the circumstances, the Judge erred in failing to be satisfied that there was good reason to suspend the sentence. The matters relied upon before the Judge, and on appeal, are significant. It appears that Mr Nekic may have turned his life around. However, one must also have regard to the seriousness of the offending, and to the fact that it does involve three separate incursions into serious crime.
In the end, the submission on appeal turns on the factors that were put to the sentencing Judge. They are that Mr Nekic was significantly affected by alcohol when he committed the offences, but has now stopped abusing alcohol, that he has returned to the relationship with his de facto, and that his prospects of rehabilitation are good. As I have already said, they are relevant matters, and are significant matters. They are matters which might have persuaded the Judge to suspend the sentence. However, as the Judge himself remarked, the serious nature of the offending, and this includes the period of time over which it occurred, was a factor that also had to be taken into account.
While recognising the force of the submissions in support of a suspended sentence, I am unable to say that it was not open to the Judge to take the course that he took. For that reason, and having considered the submissions by Mr Fardone, in my opinion permission to appeal should be refused. For those reasons I would refuse permission to appeal.
DUGGAN J: I agree that permission to appeal should be refused and I agree with the reasons given by the Chief Justice.
VANSTONE J: I too agree.
DOYLE CJ: Accordingly the order of the Court is:
1That permission to appeal be refused.
2That the applicant’s sentence will continue to run notwithstanding the institution of the application for permission to appeal against sentence.