Rendic v The Queen

Case [2021] SASCA 23

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

RENDIC v THE QUEEN

[2021] SASCA 23

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)

29 April 2021

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

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS

Appeal against sentence.

The appellant pleaded guilty to one count of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA).

The offence of aggravated causing serious harm with intent to cause serious harm is a prescribed designated offence pursuant to ss 71(5) and 96(9) of the Sentencing Act 2017 (SA) (Sentencing Act). The effect of this designation is that pursuant to s 96(3)(b) of the Sentencing Act, a sentence of imprisonment may not be suspended if the defendant is sentenced as an adult to a period of imprisonment of 2 years or more. Further, pursuant to s 71(2)(b)(i) of the Sentencing Act, a home detention order must not be made if the defendant is sentenced as an adult to a period of imprisonment with a non-parole period of 2 years or more. The sentencing judge invited submissions as to how he should approach sentencing in light of these provisions.

The judge ultimately imposed a head sentence of four years’ imprisonment, reduced by 20 per cent from a notional starting point of five years for the appellant’s guilty plea. He fixed a non-parole period of two years and three months, which precluded him from making a home detention order. In doing so, he proceeded on the basis that it would be appropriate to consider the impact of s 71(2)(b)(i) in the fixing of the non-parole period where a non-parole period of less than two years was within the range of non-parole periods bearing a proper relationship to the head sentence. He also expressly had regard to the need for the non-parole period to be a proper proportion of the head sentence.

The appellant contended that the sentence was manifestly excessive, that the non-parole period was manifestly excessive, and that the judge erred in his approach to the interaction between s 71(2)(b)(i) of the Sentencing Act and his discretion in fixing a non-parole period.

Held, per Bleby JA (Kelly P and Lovell JA agreeing), refusing permission to appeal on Grounds 1 and 2 and dismissing the appeal:

1.  The sentencing judge did not violate any principle of sentencing by his approach to imposing the non-parole period.

2.  The sentencing judge’s starting point of five years imprisonment was not outside his discretion. The non-parole period, at approximately 56 per cent of the head sentence, was merciful.

Criminal Law Consolidation Act 1935 (SA) s 23(1); Sentencing Act 2017 (SA)…

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Rendic v The Queen [2021] SASCA 23
Case
[2021] SASCA 23
Decision Date

CaseChat Overview and Summary

The appellant, Rendic, sought leave to appeal against a sentence imposed by a sentencing judge. The appeal concerned the severity of the custodial sentence and the non-parole period.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge had erred in their approach to imposing the non-parole period and whether the starting point for the head sentence of five years imprisonment was outside the judge's discretion.

The Court, per Bleby JA (with Kelly P and Lovell JA agreeing), found that the sentencing judge had not violated any sentencing principles in determining the non-parole period. The Court held that the starting point of five years imprisonment was within the sentencing judge's discretion, considering all of the appellant's personal circumstances and the nature of the offending. Furthermore, the non-parole period, set at approximately 56 per cent of the head sentence, was considered merciful. Accordingly, the Court refused permission to appeal on the grounds raised and dismissed the appeal.

Orders

Orders of the court

Held, per Bleby JA (Kelly P and Lovell JA agreeing), refusing permission to appeal on Grounds 1 and 2 and dismissing the appeal:

1. The sentencing judge did not violate any principle of sentencing by his approach to imposing the non-parole period.

2. The sentencing judge’s starting point of five years imprisonment was not outside his discretion. The non-parole period, at approximately 56 per cent of the head sentence, was merciful.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to all of the appellant’s personal circumstances and the nature of the offending, I do not consider the starting point of five years to have been outside the sentencing judge’s discretion. The non-parole period, at approximately 56 per cent of the head sentence, was merciful.Conclusion I would refuse permission to appeal on Grounds 1 and 2. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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