Karolides v The Queen
[2000] WASCA 330
•3 NOVEMBER 2000
KAROLIDES -v- THE QUEEN [2000] WASCA 330
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 330 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:213/1998 | 9 AUGUST 2000 | |
| Coram: | IPP J OWEN J HEENAN J | 3/11/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time granted Leave to appeal granted Appeal allowed | ||
| PDF Version |
| Parties: | PAUL CHRISTOPHER KAROLIDES THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Assault by prisoner on prison officers Terms of one year and two years cumulative upon each other and upon current sentence 23-year-old offender serving 11-1/2 year sentence Six years yet to serve Offences forming one episode of rebellious conduct Totality principle |
Legislation: | Nil |
Case References: | Bowman v The Queen (1993) 69 A Crim R 530 Abbott & Ors v The Queen, unreported; CCA SCt of WA; Library No 7814; 1 September 1989 Cox v Whitehead & Ors [1999] WASCA 277 Cunningham v The Queen, unreported; CCA SCt of WA; Library No 4003; 4 December 1980 Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Delacey v The Queen, unreported; CCA SCt of WA; Library No 7687; 31 May 1989 Dhu v Ward [2000] WASCA 140 Director of Public Prosecutions v Grabovac [1998] 1 VR 664 Farmer v The Queen, unreported; CCA SCt of WA; Library No 940075; 16 February 1994 Green v The Queen, unreported; CCA SCt of WA; Library No 950592; 8 November 1995 King v Power, unreported; CCA SCt of WA; Library No 930289; 27 May 1993 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Paparone v The Queen [2000] WASCA 127 R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998 Schneidas v The Queen (No 1) (1981) 4 A Crim R 95 Spiteri v The Queen, unreported; CCA SCt of WA; Library No 930209; 8 April 1993 Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998 Warrell v Kay (1995) 83 A Crim R 493 Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KAROLIDES -v- THE QUEEN [2000] WASCA 330 CORAM : IPP J
- OWEN J
HEENAN J
- CCA 243 of 1999
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Assault by prisoner on prison officers - Terms of one year and two years cumulative upon each other and upon current sentence - 23-year-old offender serving 11-1/2 year sentence - Six years yet to serve - Offences forming one episode of rebellious conduct - Totality principle
Legislation:
Nil
(Page 2)
Result:
Application for extension of time granted
Leave to appeal granted
Appeal allowed
Representation:
Counsel:
Applicant : Mr R A Mazza
Respondent : Mr R E Cock QC & Mr A G Elliott
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bowman v The Queen (1993) 69 A Crim R 530
Case(s) also cited:
Abbott & Ors v The Queen, unreported; CCA SCt of WA; Library No 7814; 1 September 1989
Cox v Whitehead & Ors [1999] WASCA 277
Cunningham v The Queen, unreported; CCA SCt of WA; Library No 4003; 4 December 1980
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Delacey v The Queen, unreported; CCA SCt of WA; Library No 7687; 31 May 1989
Dhu v Ward [2000] WASCA 140
Director of Public Prosecutions v Grabovac [1998] 1 VR 664
Farmer v The Queen, unreported; CCA SCt of WA; Library No 940075; 16 February 1994
Green v The Queen, unreported; CCA SCt of WA; Library No 950592; 8 November 1995
(Page 3)
King v Power, unreported; CCA SCt of WA; Library No 930289; 27 May 1993
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Paparone v The Queen [2000] WASCA 127
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
Schneidas v The Queen (No 1) (1981) 4 A Crim R 95
Spiteri v The Queen, unreported; CCA SCt of WA; Library No 930209; 8 April 1993
Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
Warrell v Kay (1995) 83 A Crim R 493
Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996
(Page 4)
1 IPP J: I have read the reasons to be published by Heenan J. I am in agreement with those reasons and have nothing further to add.
2 OWEN J: I have read the reasons of Heenan J. I agree with those reasons and with the orders which his Honour has proposed.
3 HEENAN J: On 3 December 1998 in the District Court at Perth the applicant was arraigned upon an indictment containing three counts. Each arose out of an incident which took place during the first week of August 1997 at Canning Vale Prison, where the applicant was serving a long sentence. In the first count he was charged that on or about 4 August he assaulted a prison officer then performing a function of his office. In the second count he was charged that on 5 August he threatened to kill the same officer and others. In the third count he was charged that on 7 August he assaulted another prison officer then performing a function of his office. Upon arraignment he pleaded guilty to the third count and not guilty to the other two. Thereupon, his trial by jury on the first two counts began. At the end of the trial on the following day the jury found him not guilty on the second count, but guilty on the first. On 11 December 1998 the learned trial Judge sentenced the applicant to imprisonment for one year in respect of the earlier assault and for two years in respect of the other. His Honour directed that the terms take effect cumulatively upon each other and upon the sentence already being served - in effect an additional sentence of three years imprisonment - with eligibility for parole.
4 The applicant now seeks an extension of time within which to apply for leave to appeal against the sentence imposed in respect of the later assault and then - subject to the grant of leave - he appeals against the overall sentence. The applications and submissions relating to the appeal were all heard together.
5 The applicant was born on 4 April 1975. He has a long history of court appearances from July 1986 onwards. Before his 18th birthday he had been convicted on more than 180 charges, including five for robbery, many for breaking, entering and stealing and several for assault. His offending continued. On 2 March 1994 in the Perth Children's Court he was sentenced to imprisonment for one year for two burglaries. He escaped. On 9 May 1994 in this Court he was sentenced to a total of six years imprisonment for two armed robberies which he committed while at liberty. On 23 February 1996 in the District Court he was sentenced to an additional four years and six months imprisonment for eight counts of assaulting a public officer, two counts of burglary and
(Page 5)
- several other offences. Thus he was serving sentences of 11½ years in the aggregate, due to expire on 8 September 2004, when he committed the offences the subject of these proceedings.
6 The applicant relies upon two grounds. They are expressed in the papers as follows:
"1. The learned Sentencing Judge erred in failing to give any or any sufficient weight to the following mitigating factors raised on the applicant's behalf:
- His psychiatric condition at the time of the offences as outlined in the report of Dr Achimovich
- The punishment already received by the applicant within the prison system for these offences
- In relation to [the second assault], the fact that the applicant pleaded guilty to the offence.
- 2. The learned Sentencing Judge erred in failing to give any or any sufficient consideration to the principle of totality of sentence."
7 When sentencing the applicant his Honour described the circumstances of the offences in this way:
"…on 4 August 1997 you were a prisoner at Canning Vale Prison. Between approximately 10.30 and 11.30 pm you were creating a nuisance. You were playing loud music and kicking the door and generally inciting problems in the wing. You weren't of course alone in that. There were others and there was a general sort of hubbub carrying on during that night.
The complainant and two others went to your cell to move you from that area as your behaviour was likely to incite other prisoners to cause problems. When the complainant entered your cell you leapt at him, pushing him by the arms or shoulders violently against the wall. You continued to struggle with the complainant and two others until you were restrained by the use of a baton and by the use of handcuffs.
(Page 6)
- The second count or the third count on the indictment, occurred a few days later on 7 August 1997. You were still a prisoner at Canning Vale Prison and you had been in a secure area making a telephone call. After you had finished, the complainant opened the door to let you out. You punched him in the face and he fell to the ground. Whilst he was on the ground you kicked him on more than one occasion. He suffered injuries to his face. As you were assaulting the complainant you said, 'I'll show you, you fucking dogs,' or words to that effect. You were restrained by others again after that attack on the prison officer.
I have read through the various papers including the transcript of the telephone call and I note that in the telephone call that you had been making you advised that you were going to hit a prison officer even though you realised that by doing so that would be more time, and you expressed frustration due to the loss of privileges, but of course any loss of privileges from which you were suffering at the time was due to your own activities. It is clear, therefore, with respect to count 3 on the indictment that the attack on the prison officer was premeditated, that you had decided you were going to do that, and in my view that is an aggravating feature of that assault."
- In the course of his remarks his Honour made it clear that:
(a) he had taken into account the report of Dr Achimovich and was aware that the applicant had completed the Violent Offenders Programme and accepted that the applicant had the ability to change his behaviour with therapeutic assistance;
(b) he had taken into account that the applicant had been the subject of punishment within the prison, including solitary confinement, the loss of privileges and the like and
(c) he had taken into account the applicant's plea of guilty to the second assault.
It is clear from the remarks that his Honour did consider each of the mitigating factors referred to in this ground. In my opinion, the papers before us do not provide any basis upon which this Court could conclude that his Honour did not give sufficient weight to such factors - save, perhaps, for the punishment with the applicant had received within the prison. I shall touch upon that factor again.
(Page 7)
Ground 2
8 As his Honour said, these are very serious offences indeed. The courts have a duty to protect prison officers from assaults by prisoners. A cumulative penalty almost invariably is required by way of personal and general deterrence. Terms of one and two years imprisonment fairly reflect both the seriousness of the respective offences and the mitigating factors to which reference has been made. Further, it is appropriate that those terms should take effect cumulatively upon the sentence which the applicant was serving. However, because that sentence was lengthy and was not due to expire until almost six years later, the totality principle required consideration.
9 In the course of his remarks when sentencing his Honour did not refer directly to the combined effect of the sentence which the applicant was serving and the additional imprisonment which was being imposed. That does not mean that his Honour did not give consideration to that aspect of the matter. It was an aspect stressed by counsel for the applicant in the course of her speech in mitigation and it can hardly have escaped his Honour's attention. But the offences seem to have formed part of one episode of rebellious conduct and, in my view, the imposition of a further three years on top of the six years which the applicant was yet to serve was too much. A 23-year-old man, he had been in prison since the age of 18 years and he had undergone substantial punishment within the prison for the assaults already.
10 In order to reflect the proportionality of the effective penalty to the total criminality of the applicant (see Bowman v The Queen (1993) 69 A Crim R 530 per Ipp J at 542) I would reduce the sentence from three years to two years by directing that the terms imposed by his Honour be served concurrently with, rather than cumulatively upon, each other. I would grant an extension of time and leave to appeal and would allow the appeal against sentence in order to achieve that result.
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