SEAN MLAKAR In Person via AVL v THE KING [2024] SASCA 76

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE STRETTON) DCCRM-21-1139 Appellant: SEAN MLAKAR In Person via AVL Counsel: MR M MEAD - Solicitor: DIXON GALLASCH Respondent: THE KING Counsel: MS S ATTAR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 18/06/2024 File No/s: SCCRM-24-000220 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MLAKAR v THE KING [2024] SASCA 76 Judgment of the Court of Appeal (ex tempore) (The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Bleby) 18 June 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE The appellant viciously assaulted his domestic partner and subsequently pleaded guilty to one count of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The appellant was sentenced to three years and four months imprisonment, reduced by 15 per cent for his plea of guilty to two years and 10 months. A non-parole period of 17 months was fixed. The appellant appeals against the sentence on the ground that the head sentence was manifestly excessive. Held, per the Court, granting permission to appeal but dismissing the appeal: 1. The sentence is not manifestly excessive and is within the permissible range of sentences available to the sentencing Judge. Criminal Law Consolidation Act 1935 (SA) s 20(4), referred to. Martain v The King (2023) 105 MVR 404; Pateras v The Queen (2021) 139 SASR 549; R v Nedza [2013] SASCFC 142, considered. -- 1 of 7 -- -- 2 of 7 -- MLAKAR v THE KING [2024] SASCA 76 Court of Appeal – Criminal: Lovell, Doyle and Bleby JJA 1 THE COURT (ex tempore): On 21 July 2021 in the Adelaide Magistrates Court, the appellant pleaded guilty to one count of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The appellant was committed for sentence in the District Court. 2 The maximum penalty for the offence of aggravated assault causing harm is four years imprisonment. The aggravated assault was committed against the appellant’s domestic partner. The sentencing Judge sentenced the appellant to three years and four months imprisonment. This was reduced by 15 per cent for his plea of guilty to two years and 10 months imprisonment, with a non-parole period of 17 months. As the appellant had spent five days in custody and a little over two years on home detention bail, the sentencing Judge allowed seven months credit. The final sentence was two years and three months imprisonment with a non-parole period of 10 months. The sentencing Judge refused to suspend the sentence or order that it be served on home detention. Both the head sentence and the non-parole period were to commence on the day of sentence, namely, 12 December 2023. 3 The appellant complains that the head sentence was manifestly excessive. He does not complain about the refusal to suspend the sentence or order that he serve the sentence on home detention. Facts of offending 4 The appellant and the victim commenced a relationship towards the end of 2014. There were three children from the relationship. Tragically, the child who was born in early 2018 became ill and eventually passed away in December 2018, shortly before this offending. 5 On 7 February 2019, just two months after the death of their child, the victim put her two-year-old to bed and lay down on the couch in their lounge room. As described by the sentencing Judge, the appellant then launched a violent and protracted assault for no obvious reason. 6 The appellant pulled the victim off the couch causing her to fall to the floor. The appellant then hit the victim using his elbows. The appellant continued to slap and punch the victim all over her body and slammed her head into the ground, the assault occurring over a protracted period of time. The assault was completely unprovoked. The appellant ignored the victim’s repeated pleas for help. The victim suffered bruising and pain all over her body. Some of her hair was torn out during the assault. The appellant later told the victim that she had deserved it. -- 3 of 7 -- [2024] SASCA 76 The Court 2 7 The assault was committed while their two-year-old son was asleep in the next room. 8 The assault occurred when the victim was grieving the loss of their daughter and in circumstances where the appellant, with no foundation, blamed the victim for the death of their child. The assault was committed against the background of the appellant having been physically and verbally abusive towards the victim since the death of their daughter in December 2018. This included controlling behaviour on the part of the appellant, such as the use of mobile phones and cameras to record the victim’s movement in the house. 9 Ultimately, after further uncharged events which involved the victim’s hospitalisation, she reported the matter to the police. The appellant admitted to the police that he had assaulted the victim. 10 In her victim impact statement, the victim confirms that she has been deeply traumatised by the assault and feels guilty for allowing it to happen to her and her children. She struggles to function normally and the trauma seems likely to continue for some time. Appellant’s submissions 11 The appellant’s main complaint concerns the notional starting point the sentencing Judge selected. The appellant submitted that the imposition of a notional head sentence of 83 per cent of the maximum penalty was outside the range available to the sentencing Judge when considering the circumstances of the offence and the personal circumstances of the appellant. 12 At the time of sentencing, the appellant was 37 years of age. He completed year 11 at school and worked in a number of jobs including working as a factory hand. During covid in 2020 the appellant lost his employment, although, in more recent times, he has been working. 13 The appellant had previously benefitted from suspended sentences for the offences of serious criminal trespass and driving disqualified. He had one prior conviction for assault for which he received the penalty of a 12-month good behaviour bond. 14 At the time of the aggravated assault, the appellant was addicted to methamphetamine. It is not clear whether the addiction to methamphetamine occurred as a result of the death of their child or whether that death exacerbated an already ongoing use of methamphetamine. 15 Whilst on home detention bail, the appellant attended an abuse prevention program. Initially, the appellant was unwilling to accept any responsibility for his behaviour but then made progress in terms of accepting responsibility. The appellant was regularly tested for the presence of methamphetamine whilst on -- 4 of 7 -- [2024] SASCA 76 The Court 3 home detention. All tests were negative indicating positive steps towards rehabilitation. 16 The appellant submitted that the harm suffered by the victim fell short of the type of offending that would typically be described in more serious categories of this offending. Further, he submitted that the protection of the community is not always best achieved by a higher or more severe sentence, and that the sentence should have focused on his rehabilitation, particularly given the progress he made whilst on home detention. Respondent’s submissions 17 The respondent submitted that the appellant’s offending was a serious example of offending of its type, perpetrated upon his vulnerable female partner and set against a background of verbal and physical abuse. The sentencing Judge’s characterisation of the assault as unprovoked, relentless and protracted, was open on the facts. The offending was not isolated, and the appellant’s conduct had to be assessed as falling at the upper end of the range of seriousness for offences of this type. The appellant’s conduct warranted a sentence that gave the appropriate consideration to the protection of the safety of the community and the need to deter violence within a domestic setting. 18 The respondent submitted that whilst a lower sentence may have been imposed, this does not mean that the sentencing discretion has miscarried. The appellant’s addiction to methamphetamine is not a mitigating circumstance and indeed it may increase the weight to be given to personal deterrence and community protection because of the increased risk of reoffending. 19 The respondent further submitted that the appellant’s demonstrated steps towards rehabilitation had to be balanced against the seriousness of the offending and the need for the sentence imposed to give substantial weight to both general and personal deterrence. Overall, the respondent submitted the sentence of imprisonment could not be described as manifestly excessive. Discussion 20 The principles on appellate review of the exercise of the sentencing discretion are well-settled. As the Court observed in Pateras v The Queen:1 On appellate review of a sentencing decision the principles enunciated in House v The King are applicable. A challenge to a Sentencing Judge’s discretionary decision can only succeed if the judge: 1. made an error of legal principle; 2. made a material error of fact; 1 (2021) 139 SASR 549 at [15]-[17]; see also Martain v The King (2023) 105 MVR 404. -- 5 of 7 -- [2024] SASCA 76 The Court 4 3. took into account some irrelevant matter; 4. failed to take into account, or gave insufficient weight to [exceptional] some relevant matter; or 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. Members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted to a failure to properly exercise the discretion actually entrusted to the sentencing court. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. The exercise of the discretion that the law reposes in a Sentencing Judge does not yield a single correct sentence. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the Sentencing Judge’s discretion. (citations omitted) 21 Domestic violence is unfortunately prevalent in society. General and personal deterrence must play a significant role in assessing an appropriate penalty. As observed by Nicholson J in R v Nedza, the courts must make it plain that they “will not tolerate domestic violence, particularly where, as is typical, it is meted out to physically weaker or defenceless women or children”.2 22 As the sentencing Judge described, the assault was unprovoked, relentless and protracted. As the respondent submitted, the offending was vicious, on a vulnerable female, not isolated and resulted in harm that included hair being pulled from the victim’s scalp. The offending fell at the upper end of the range of seriousness for this type of offending. 23 The sentencing Judge clearly had regard to the personal circumstances of the appellant. The sentencing Judge imposed a relatively low non-parole period reflecting the appellant’s positive steps towards rehabilitation. 24 The sentence here can be described as high. However, the offending was very serious. It was a vicious attack on a vulnerable victim. The sentence is within the permissible range of sentences available to the sentencing Judge. 2 R v Nedza [2013] SASCFC 142 at [87]. -- 6 of 7 -- [2024] SASCA 76 The Court 5 Order 25 Permission to appeal is granted. The appeal is dismissed. -- 7 of 7 --