Degioannis v Boxx - [2017] ACTSC 7

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:	The appeal is allowed. 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. 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. The Good Behaviour Order is subject to the core obligations under the Crimes (Sentence Administration) Act 2005 (ACT).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Degioannis v Boxx

Details

AGLC: Degioannis v Boxx [2017] ACTSC 7
Case: [2017] ACTSC 7
Decision Date: 16 January 2017

CaseChat Overview and Summary

The appellant, Degioannis, appealed against the sentence imposed by the Magistrates Court of the Australian Capital Territory, contending that the sentence was manifestly excessive. The case involved a threat to kill, and Degioannis argued that the sentence should be reconsidered due to its severity. The legal issues for the court to determine included whether the appeal had merit, and if so, whether a different sentence should be imposed that would be considered just and appropriate. The court was tasked with assessing the proportionality of the original sentence and whether it adhered to the principles of sentencing under the relevant legislation.

In considering the appeal, the court examined the nature of the offence, the circumstances surrounding it, and the impact of the original sentence on the appellant. The court reviewed the principles of sentencing, including the need for punishment, deterrence, rehabilitation, and protection of the community. The court also took into account the appellant's background, including his prior criminal history, and the mitigating factors presented. After a thorough analysis, the court found that the original sentence was indeed manifestly excessive and did not align with the principles of sentencing.

Consequently, the appeal was allowed. The court imposed a new sentence, reducing the term of imprisonment and introducing a period of full-time imprisonment followed by a suspended sentence and a Good Behaviour Order. This new sentence was deemed to be more proportionate and appropriate given the circumstances of the case. The court's decision provided clarity on the appropriate sentencing for the offence and ensured that the sentence reflected the seriousness of the threat to kill while also considering the appellant's circumstances.

Orders

Orders of the court

1. The appeal is allowed.

2. 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.

3. 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.

4. The Good Behaviour Order is subject to the core obligations under the Crimes (Sentence Administration) Act 2005 (ACT).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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