Degioannis v Boxx
[2017] ACTSC 7
•16 January 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Degioannis v Boxx |
Citation: | [2017] ACTSC 7 |
Hearing Date: | 16 January 2017 |
DecisionDate: | 16 January 2017 |
Before: | Elkaim J |
Decision: |
|
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Appeal against sentence – manifestly excessive. |
Legislation Cited: | Crimes Act1900 (ACT) ss 30,35 Crimes (Sentencing) Act 2005 (ACT) Magistrates Court Act 1930 (ACT), s 214(4) |
Cases Cited: | Law v Ilievski [2016] ACTSC 291 R v Loulanting [2015] ACTSC 172 Zradkovic v The Queen [2016] ACTCA 53 |
Parties: | Shannon David Degioannis (Appellant) Caleb Boxx (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr S McLaughlin (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 53 of 2016 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Fryar Date of Decision: 5 July 2016 Case Title: R v Degioannis Court File Number: CC 10381 of 2015 |
ELKAIM J:
This is an appeal from a decision of Magistrate Fryar given on 5 July 2016. The appellant was sentenced in relation to a stalking charge and separately in relation to a threat to kill charge. He had pleaded guilty to both offences.
The specific sentences were as follows:
(a)On the charge of stalking contrary to s 35 of the Crimes Act1900 (ACT) the offender was sentenced to 12 months imprisonment commencing on 31 October 2015 and ending on 30 October 2016.
(b)On the charge of threat to kill contrary to s 30 of the Crimes Act the offender was sentenced to 27 months imprisonment commencing on 31 October 2015 and ending on 30 January 2018.
(c)A non-parole period of 18 months was set, expiring on 30 April 2017.
The maximum penalty for the s 30 offence is imprisonment of 10 years. It is clearly to be regarded as a serious offence.
In Law v Ilievski [2016] ACTSC 291 Refshauge J dealt with the jurisdiction of the Supreme Court hearing appeals from the Magistrates Court and with the role of the court in dealing with such appeals.
[11] This Court is granted jurisdiction to hear appeals from the Magistrates Court under Pt 3.10 of the Magistrates Court Act 1930 (ACT). In particular, Div 3.10.2 deals with, inter alia, appeals against sentence.
[12] I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to appeals against sentences imposed in the Magistrates Court. They may be summarised as follows.
[13] Sentences imposed in the Magistrates Court may be set aside if I am satisfied that the exercise or the sentencing discretion in the Magistrates Court was affected by error but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate. Sentences are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.
[14] Errors may be specific. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and re-impose the same sentence.
[15] Even if I cannot identify a specific error, however, I may uphold the appeal and substitute another sentence for the original sentence if I find that the original sentence is manifestly excessive, unreasonable, plainly unjust or plainly wrong.
In addition to the summary given by Refshauge J I will also quote from the recent decision of the ACT Court of Appeal in Zradkovic v The Queen [2016] ACTCA 53 in relation to the principles to be applied where there is an allegation of a manifestly excessive sentence: Commencing at paragraph 51 the Court said:
[51] A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].
[52] When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
The sentence in respect of the stalking offence has now been served. The appeal concerns the threat to kill offence.
As already noted, this offence, including by its very definition, is a serious offence. The offence was committed while the offender was in custody and he has a significant criminal history.
The offences arose from a relationship the offender had with a Ms Garland. There is one child of that relationship. In February 2015 the offender began a term of imprisonment in relation to an offence of intentional wounding. While in custody the offender persistently telephoned Ms Garland despite her telling him not to do so. He also wrote to her frequently causing her to be concerned as a result of the threatening and abusive language in the letters.
In March 2015 Ms Garland commenced a relationship with another man. She fell pregnant to that man. When the offender learned of these facts he became increasingly abusive and threatening in his letters.
10. On 16 October 2015, during an interview with the offender conducted by staff members from the St Vincent de Paul Throughcare program the offender told the staff members that he had become depressed, that he was contemplating suicide and that he had set plans for when he was to be released from prison. He contemplated that he would “take out” Ms Garland’s new partner in order to be with her.
11. In addition he said that if Ms Garland did not wish to resume their relationship, he would “just take everybody out”. The St Vincent de Paul staff were understandably upset. They believed that the reference to “taking out” indicated an intention to kill.
12. In her sentencing remarks the magistrate said the threat to kill offence was in the mid-range of objective seriousness. This was derived from the circumstances of the threats, generating a real concern that they would be carried out.
13. The magistrate did give the offender a discount for his plea of guilty but made the point that his earlier ‘not guilty pleas’ limited the extent of the discount. She noted the offender’s prior record, including many offences of violence. She also noted his poor compliance with community-based orders but at the same time took account of the very difficult childhood the offender had experienced.
14. The magistrate was convinced that imprisonment was required. In relation to the threat to kill offence she reduced the period of imprisonment by 3 months as a result of the plea of guilty.
15. In his written submissions the appellant has stressed that he regrets his plea of guilty. He said that it was based on incorrect legal advice from a Legal Aid lawyer. He states: “I can attest I am deeply regretful and ashamed that I took the second lawyer’s advice and pleaded guilty.”
16. The appellant’s submissions, both written and oral, do not however include any application to withdraw his plea of guilty. He may have acted on legal advice but there is nothing to suggest that he did not do so of his own free will. His written submissions include an acknowledgement that he “cannot contest the Conviction”.
17. I note however, that despite the appellant’s concession that he cannot overturn the conviction, the bulk of his submissions attack the ingredients of the offence. For present purposes the plea of guilty must be seen as an acknowledgement of having made a threat to kill. I intend to proceed on the basis of the guilty plea.
18. Also in his written submissions, the appellant criticises the St Vincent’s de Paul staff for, in essence, reporting his statements to the police. I reject this criticism. The staff, even if they misunderstood the words being said, were fully entitled, on their interpretation, to be concerned and to pass those concerns on to the police.
19. By an Amended Notice of Appeal the offender has sought leave to adduce fresh evidence.
20. Section 214(4) of the Magistrates Court Act1930 (ACT), states:
If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if— (a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and (b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
21. The fresh evidence in this case consisted of the material in Exhibit A and the evidence of a witness, Reverend Peta Thorpe. Other than pointing me to s 214, the Crown did not oppose the admission of the fresh evidence. The documents contained in Exhibit A are not of great assistance on the appeal against severity. The evidence of the witness was of considerable assistance.
22. Reverend Thorpe engaged with the appellant during a course he attended over September and October 2015 called the Seasons for Growth program. The intent of the program was to assist attendees in dealing with loss and grief. In the appellant’s case he sought assistance to deal with the death of a child and also the probability that he would lose substantial contact with his living daughter.
23. Reverend Thorpe said that the appellant expressed the wish that his former partner and their daughter should be “well”, notwithstanding that he recognised that he would be separated from them. The witness also said that during church services the appellant would ask for prayers to be recited for his daughter and partner wishing them well in the future. Reverend Thorpe said that the appellant had never expressed any intention to harm any person.
24. The burden of the appellant’s submissions was that there had been a misinterpretation of the words that he had spoken during the meeting on 16 October 2015. There is no doubt however, as I said above, that the other persons in the meeting interpreted what the appellant said as a threat. If they were wrong that does not affect the commission of the offence. However, as conceded by the Crown, the appellant’s intention and meaning of the words spoken can be taken into account in sentence.
25. I do not think the learned magistrate did so, or at least not to an appropriate extent.
26. The result is that I think the sentence was manifestly excessive. I note the Crown, again making appropriate concessions, conceded the sentence was at the higher end of the scale although did not accept that it was beyond the scale. The Crown asked me to take into account the totality of the sentence, noting that the sentence for the stalking charge was wholly concurrent with the longer sentence. Although the point is well made I do not think it affects the manifest excessiveness of the latter sentence.
27. As pointed out by the Crown there is little comparable authority which I can use as guidance. I was taken to the decision of Refshauge J in R v Loulanting [2015] ACTSC 172 which does have some similarities with the present facts but also a number of differences.
28. In my view the appropriate sentence in this matter, after taking into a account the guilty plea, is a period of imprisonment of 22 months. The final 6 months should be suspended, upon the appellant entering into a good behaviour order for a period of 12 months during which he is to comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT).
29. I make the following orders:
(i)The appeal is allowed.
(ii)In lieu of the sentence imposed by the Magistrate, in relation to the offence of threat to kill (CC15/10381), I sentence the appellant to a term of imprisonment of 22 months to commence on 31 October 2015 and expire on the 30 August 2017.
(iii)The period commencing 31 October 2015 and expiring 28 February 2017 is to be served by way of full-time imprisonment. The remaining 6 months of that sentence will be suspended and there will be a Good Behaviour Order for a period of 12 months commencing on 28 February 2017.
(iv)The Good Behaviour Order is subject to the core obligations under the Crimes (Sentence Administration) Act.
| I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: P Swayn Date: 17 January 2017 |
2
2
3