Dzundza v Calatzis

[2016] ACTSC 171

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dzundza v Calatzis

Citation:

[2016] ACTSC 171

Hearing Date:

7 July 2016

DecisionDate:

7 July 2016

Before:

Murrell CJ

Decision:

Appeal allowed in relation to nonparole period. Appeal otherwise dismissed. See [26].

Catchwords:

APPEAL – CRIMINAL LAW – Jurisdiction, Practice and Procedure – Judgment and punishment – sentence – nonparole period – where nonparole period manifestly excessive

Legislation Cited:

Magistrates Court Act 1900 (ACT) ss 207, 208

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33

Cases Cited:

Fusimalohi v The Queen [2012] ACTCA 49

House v The King (1936) 55 CLR 499
Monfries v The Queen [2014] ACTCA 46
R v Hutchinson [2014] ACTCA 29
R v Seears [2015] ACTSC 109

R v Lindley-Jones [2014] ACTSC 296

Parties:

Peter Dzundza (Appellant)

Paul Calatzis (Respondent)

Representation:

Counsel

Mr A Doig (Appellant)

Ms K McCann (Respondent)

Solicitors

Darryl Perkins Solicitors (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 7 of 2016

Decision under appeal: 

Court/Tribunal:             Magistrates Court of the ACT

Before:  Chief Magistrate Walker

Date of Decision:         13 November 2015

Case Title:  Calatzis v Dzundza

Court File Number:       CC 1305 of 2015

MURRELL CJ:

1. The appellant appealed against sentences imposed by the Chief Magistrate on 13 November 2015 on the ground that the sentences were manifestly excessive.

1. The relevant offences occurred during a “home invasion” on 23 January 2015. 

1. The Chief Magistrate imposed the following sentences: 

(a)Aggravated burglary, three years' imprisonment (maximum penalty 20 years' imprisonment, five year maximum in the Magistrates Court); 

(b)Possess offensive weapon, six months' imprisonment (three months to be served concurrently with the first sentence, maximum penalty one year's imprisonment); 

(c)Common assault, five months' imprisonment (to be served concurrently with the first sentence, maximum penalty two years' imprisonment). 

1. The total period to be served was three years and three months' imprisonment from 5 November 2015, i.e. 39 months' imprisonment.  Her Honour fixed a nonparole period of two years and three months or 27 months' imprisonment, 70% of the total sentence.

Appeals to the Supreme Court

1. The jurisdiction of the Supreme Court to hear criminal appeals from the Magistrates Court is under ss 207 and 208 of the Magistrates Court Act 1900 (ACT). 

1. On an appeal against sentence, the appellant must demonstrate an error in the exercise of the sentencing discretion.  It may be a specific error, such as the application of wrong principle, the consideration of extraneous or irrelevant matters or making a mistake about the facts: House v The King (1936) 55 CLR 499–505. Alternatively, error may be inferred if the sentence is manifestly excessive or manifestly inadequate, but only if the sentence is unreasonable or plainly unjust. Such a conclusion cannot be drawn merely because the appeal court would have imposed a more lenient sentence: Monfries v The Queen [2014] ACTCA 46 at [21]. The test has also been expressed as whether the sentence is outside the available sentencing range.

1. In determining any sentence, the factors that are to be taken into account are the maximum penalty, the objective circumstances of the offence, the offender's subjective circumstances and any relevant statutory considerations, including the sentencing purposes set out in s 7 and the factors in s 33 of the Crimes (Sentencing) Act 2005 (ACT).

Were the sentences manifestly excessive?

1. The maximum penalty for aggravated burglary is 20 years' imprisonment.  The maximum penalty that may be imposed by the Magistrates Court is five years' imprisonment, but for the purpose of determining an appropriate sentence it is the maximum penalty of 20 years' imprisonment to which regard must be had.

1. In assessing the objective seriousness of this offence of aggravated burglary, relevant considerations included:

(a)the offence occurred at the residence of the victims,

(b)the victims were present and were confronted,

(c)there was damage to the property by use of the pick axe on the door,

(d)the events occurred in the presence of a young child, and

(e)the offence was pre-mediated. 

1. About two hours before the burglary the appellant communicated aggressive messages to the victims.  Not only was the offender in possession of an offensive weapon but he wielded it in an aggressive fashion and also delivered verbal threats when he entered the premises.

1. The sentencing magistrate correctly characterised the aggravated burglary as "sustained and confrontational".  She correctly referenced R v Hutchinson [2014] ACTCA 29 when assessing the objective seriousness of the offence.

1. My attention was drawn to the decision of Refshauge J in Fusimalohi v The Queen [2012] ACTCA 49, where his Honour referred to the fact that burglary of residential premises generally attracted imprisonment of periods of between one year and two and a half years. His Honour went on to identify factors that might lead to a higher sentence, some of which are present in this case: Fusimalohi v The Queen [2012] ACTCA 49 at [51].

1. My attention was also drawn to my decisions in R v Seears [2015] ACTSC 109 and R v Lindley-Jones [2014] ACTSC 296. In the latter decision, I noted that sentences exceeding three or four years’ imprisonment are uncommon, despite the maximum penalty of 20 years' imprisonment.

1. The appellant was 45 years of age at the date of the offences and had a very limited criminal history, mainly comprising driving matters.  The Chief Magistrate had regard to his criminal history, correctly characterising it as "relatively minor".  She referred to other relevant subjective circumstances. 

1. There was character evidence indicating that the conduct in question was out of the appellant's general character; that, generally speaking, the appellant conducted himself in an appropriate manner towards family members.

1. The appellant submitted that the Chief Magistrate may have placed undue emphasis on the sentencing purpose of specific deterrence, resulting in an excessive sentence. I disagree. Her Honour was entitled to take a firm view about that matter as the appellant had only just been released on conditional liberty, having been placed on a good behaviour order shortly before the offences were committed.

1. There was no error in the manner in which the Chief Magistrate approached the objective seriousness of the aggravated burglary offence and other sentencing considerations. The sentence imposed for the principal offence was well within the available sentencing range.

1. In relation to the offence of common assault that occurred immediately after the burglary, when the appellant threatened the male victim and then followed him causing the victim to run away because he feared that he would be attacked with a pick axe, that offence was also of significant objective seriousness and it is difficult to argue against the sentence of five months' imprisonment that was imposed.  In a victim impact statement tendered, the victim indicated that he suffered significantly as a result of the assault.

1. As to the sentence imposed for possessing an offensive weapon, the nature and circumstances of the possession need to be considered.  Although six months’ imprisonment is a significant sentence when compared to the maximum penalty of one year's imprisonment, it was not manifestly excessive.  I note that the effective addition to the overall sentence was only three months.

1. The Chief Magistrate was aware that she could not double count features that applied to more than one offence.  There has been no complaint that she did so.

The non-parole period

1. The only matter of concern is the nonparole period. 

1. The appellant had a very limited criminal history.  He was 45 years of age.  He had not previously spent time in custody and a very significant total sentence of three years and three months’ imprisonment was imposed. 

1. The usual sentencing pattern in relation to nonparole periods in this jurisdiction is that the nonparole period is 50 to 70 per cent of the total sentence.  Where there is a circumstance such as youth, first time in custody or prior good character, the sentencing court usually imposes a nonparole period towards the lower end of that range.  Apart from anything else, one does not know the impact that full-time imprisonment will have on such offenders in terms of their rehabilitation. The issue of rehabilitation is what generally informs an appropriate nonparole period, i.e. rehabilitation from future offending conduct. 

1. Consequently, for the appellant, I would have expected that the considerations to which I have referred would have resulted in a nonparole period at the bottom of the range or, at least, that reasons would have been given as to why a 70% nonparole period was imposed.  The Chief Magistrate did not discuss the issue of rehabilitation in the context of why she imposed such a lengthy nonparole period.

1. In the absence of explanation, because the evidence tended to suggest good prospects of rehabilitation and because the appellant had not previously been imprisoned, I conclude that the nonparole period is manifestly too high as a proportion of the total sentence.

Decision

1. As to the nonparole period, the appeal against sentence is allowed and the nonparole period is set aside.  In lieu, I fix a nonparole period of 20 months’ imprisonment to run from 5 November 2015 to 4 July 2017.  Otherwise, the appeal against sentence is dismissed.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: 14 July 2016