Kostomiris v Police No. Scgrg-00-194

KOSTOMIRIS v POLICE
[2000] SASC 108

Magistrates Appeal: Criminal

BLEBY J: This is an appeal against sentence imposed on the appellant in the Adelaide Magistrates Court on 2 March 2000. The appellant was convicted on one count of breaking and entering a building and committing larceny of goods and money to a total value of $1,137, the property of the Mobile Phone Centre, contrary to s 170(1)(a) (now repealed) of the Criminal Law Consolidation Act 1935.
The second count was one of assault occasioning actual bodily harm to a person over the age of 12, contrary to s 40 of the Criminal Law Consolidation Act.
At his trial the appellant intimated that he would plead guilty to the first count and plead not guilty to the second count. The trial proceeded on count 2. The Magistrate found the assault proved beyond reasonable doubt. The appellant then pleaded guilty to count 1.
After obtaining a pre‑sentence report and hearing submissions as to penalty, the Magistrate convicted the appellant on both counts and imposed a sentence of 18 months’ imprisonment on the first count, and in respect of the second count, 6 months’ imprisonment, cumulative on the first sentence. That made a total of 24 months. The Magistrate fixed a non‑parole period of 16 months. The sentences of imprisonment and the non‑parole period were to commence from the date of the sentence.
On 6 March 2000, some four days later, the appellant was released on bail pending the hearing of this appeal.
The appellant appeals against his sentence on a number of grounds. He alleges that the Magistrate erred in the exercise of his discretion in failing to suspend the sentence. He claims that the non‑parole period was manifestly excessive, that the sentence was manifestly excessive, that the Magistrate erred in failing to consider whether the sentences should be made concurrent, that he failed to give proper weight to the plea of guilty on the first count and that he failed to give sufficient weight to a number of other matters referred to in s 10 of the Criminal Law (Sentencing) Act 1988.
The appellant was unemployed. He claimed that he needed some money. He decided to break into the premises and to steal mobile phones and to sell them. The offence was deliberate and planned. In the early morning of 22 August 1999 the appellant left his girl‑friend’s house and went to a mobile phone store in the city. He had been there before and noted the layout. He parked his car at the rear of the building. He was equipped with tools in order to assist him to break in. He was carrying gloves which he wore in order to avoid leaving fingerprints which might identify him. He climbed up onto the roof of some other premises and across the roof of adjoining buildings. He unbolted some iron on the roof of the premises in question and entered through the roof. He took phones and cash. He was disturbed by the owner and his wife who came to the store in response to an automatic alarm which had been triggered by the appellant. The appellant tried to escape through his point of entry. The store owner grabbed the appellant’s legs as he tried to escape through the ceiling. He pulled the appellant back into the store and onto the floor. There was a scuffle involving all three until the owner’s wife went to telephone the police. The appellant violently resisted his apprehension and punched the store owner on a number of occasions. He eventually freed himself and escaped through the ceiling, but he was apprehended by police whilst he was in his girl‑friend’s car at the rear of the premises, just as he was about to make his getaway.
In the initial scuffle the wife of the store owner suffered some muscle strain through the shoulder and a neck injury. This caused her to have headaches and lower back pain, and was accompanied by severe distress at the attack on her husband.
The male victim, the proprietor of the store, suffered a broken nose and bruises and cuts to the head, leg and back. The consequent swelling to the face and sutures caused acute embarrassment and pain and affected his business and family relationships and caused distress to his children.
There was also substantial damage to the shop building itself and to computer cables broken in the course of the offences. There was substantial cleaning necessary to the walls, to a cupboard and to the carpet.
In May 1996 the appellant had broken and entered other commercial premises and had stolen an expensive motor car. He committed four offences of doing an act likely to cause harm, committed during a high speed police chase. He was sentenced to 18 months’ imprisonment with a 9 month non‑parole period, both commencing on 28 May 1997, and was ordered to pay compensation to the owner of the vehicle in an amount of $5,000. He was subsequently convicted of two further counts of interfering with a motor vehicle without the consent of the owner for which he was sentenced to 6 months’ imprisonment concurrent with the earlier sentence. He had, as a youth, committed other building breaks for which he had been dealt with in the Youth Court. He had also committed a number of driving and motor vehicle offences, including driving whilst disqualified.
The appellant was aged 22 at the time of the offence. He is now 23. He was born in Australia to parents of Greek extraction, and was still residing with them at the time of the offence. He had a reasonably strict upbringing, but with little effective communication within the family. He completed Year 11 with average results and began, but did not complete, Year 12. According to the report of Mr Fugler, a psychologist, he left school because of a fear of failure in examinations.
He has only had sporadic employment, and as will have been seen from the above, has spent some time in gaol. He had a steady relationship with a woman he intended to marry, but that relationship came to an end due to these offences.
It appears that the appellant was sexually abused at the age of 6. When he revealed this in the interview with Mr Fugler it was the first time he had told anyone of the abuse. He had also suffered a significant medical problem resulting in surgery, which has had a marked psychological effect on him.
The pre‑sentence report of Mr Dinos, a probation and parole officer, and the report of Mr Fugler both suggest and give likely reasons for the fact that he is a person of low self‑esteem, lacking self‑confidence, with low level skills of communication and is unable to confide in his parents. He engaged in much attention‑seeking behaviour as a child, thereby increasing the wrath of his parents, especially his father. According to both reports he was remorseful, having an insight into his offending, but had admitted being driven by greed in committing the offence.
The Magistrate sentenced the appellant on the basis that the breaking and entering offence was deliberate and premeditated, with a degree of sophistication and preparation and for the admitted reason of greed. Those findings were clearly open to the Magistrate. The Magistrate regarded the attack on the victims as cowardly, and considered the offending overall as a very serious example. He considered that the appellant’s history and the circumstances of the offending alone would mitigate against any decision to suspend a gaol sentence. He took into account previous warnings that the appellant had had and his apparent foolishness in disregarding those warnings. He refused to order suspension of the sentence he imposed.
The Magistrate in his sentencing remarks noted the plea of guilty to the first count and not guilty to the second, but did not indicate the effect (if any) that the plea of guilty had on the sentence that he determined.
The emphasis of the appellant in his submissions on sentence was that notwithstanding the seriousness of the offences and his poor previous record, the appellant was now genuinely contrite, that the root cause of his offending had now been identified for the first time with the aid of his psychologist, that he had never had the opportunity to demonstrate his ability to honour a bond in adult life, and that he should now be given the chance to rehabilitate himself with the aid of the professional assistance now available to him.
One particular aspect of both reports before the Court should be mentioned. Mr Fugler reported that the appellant was anxious throughout the examination but was prepared to speak openly about his offending and general behaviour. No attempts were made to deny responsibility. Mr Fugler reported:
“He displayed some insight into the meaning of his behaviour, and despite obvious embarrassment and distress was forthcoming about his physical and psychological deficits.... He intimated a desire to begin a treatment programme, and I have told him I would be prepared to conduct same or refer him to an appropriate therapist. Such an option is seen at this point as being the most efficacious approach with respect to reducing the likelihood of re‑offending.”
The report of Mr Dinos included the following:
“Mr. Kostomiris presented as well mannered, cooperative and polite man (sic). During the interview he displayed some anxiety and became emotional at times when speaking of his mother, ex‑girlfriend and his future. He appeared to be remorseful of the offences he committed. He stated that he was trying to express this to his victim when he first saw him at the Court, the victim rejected his approach. He stated that he understands why.... Nevertheless, he accepts responsibility for the offences he has committed.”
The Magistrate had also had an opportunity to observe the appellant giving evidence during the trial. The appellant had relied on self‑defence in defending the assault charge. The Magistrate rejected his evidence and his assertion of a genuine belief as to the necessity to use force to protect himself. He also rejected his evidence as to the justification for the force that he used. He considered that the appellant had misrepresented his position under oath. The evidence rejected at trial was that relating to his claim of self‑defence.
In the course of his sentencing remarks the Magistrate said the following:
“The emphasis of your submission in mitigation is contrition. It is said that you are contrite and that you desperately want to rid yourself of this matter and rehabilitate yourself. It is clear that members of your family, business associates, the local priest and others have provided documentary testimonials in your support. I have to say that I have grave reservations about the sincerity of your stated intention to rehabilitate yourself. I have watched you carefully during the course of the trial and this afternoon during the police video, and I have seen an element of calculation about your demeanour which causes me concern.”
If the Magistrate had before him only the evidence of the appellant and the Magistrate’s own observations of him, such a finding would be unassailable. However, he also had before him the unchallenged observations of Mr Dinos and Mr Fugler to which I have referred. These referred to his apparent frankness, contrition and desire to reform, and to the apparent acceptance by those two reporters of that position.
The Magistrate’s findings on the trial of the not guilty plea had made clear that he did not accept the appellant’s evidence in respect of the assault and factors going to his claim for self‑defence. Until his sentencing remarks, there was no intimation that the Magistrate did not accept his evidence on those other important matters relevant to the question of his sentence. The police prosecutor, in his affidavit, deposes to the fact that he had submitted “that the defendant had shown no remorse for his actions given that the court had found that the defendant was willing to say anything to avoid being found responsible for his actions”. In the light of the prosecutor’s consent to the tendering of the two reports to which I have referred without seeking an opportunity to cross‑examine the authors as to their belief concerning the appellant’s contrition, that submission was inappropriate, as was the Magistrate’s finding to the same effect.
The evidence of Mr Dinos and Mr Fugler became even more significant in this regard because of the identity by Mr Fugler, it would appear for the first time, of two important medical and psychological factors in the appellant’s history which had a direct bearing on his past and present behaviour. It was of some significance, according to Mr Fugler, that for the first time the appellant had been able to acknowledge these factors and to recognise that he needed to address their impact through counselling and psychotherapy.
The Magistrate’s dismissal of any evidence of contrition and desire to reform meant that he failed to take into account matters which, on the face of the uncontested evidence before him, he could not ignore.
The other major criticism by the appellant on the hearing of the appeal related to the Magistrate’s failure to indicate what effect (if any) the plea of guilty had on the penalty. For the purposes of determining ultimately whether the penalty imposed was excessive, I am prepared to accept that the plea probably had little bearing. It did not warrant much (if any) credit. The appellant had made candid admissions to the police following his arrest. He probably had little real alternative. He had been caught red‑handed. The evidence in relation to both counts, subject only to a possible claim of self‑defence in relation to the assault, was overwhelming. Notwithstanding that, he continued to put the complainant to proof on count 2, necessitating a full trial. It was a trial in respect of which there was little (if any) additional evidence which would have to be have been called if there had been a plea of not guilty on count 1. The plea of guilty to count 1, in all the circumstances, would have made little or no difference to the penalty imposed on that count.
I turn then to whether the penalty was manifestly excessive. I leave aside for the moment the question of the appellant’s contrition and possible rehabilitation. I will first consider each offence standing alone.
The break‑in was particularly serious and well‑planned. The appellant took steps to conceal his identity. The offending did not stop when he was detected. There was a serious attempt to escape which almost succeeded. He did escape from the building notwithstanding the attempt by the owner to restrain him. He only gave himself up when he had no avenue of escape on being confronted by police in the car‑park outside the building. The amount taken was significant. It would have been more if he had not been interrupted. The damage to the premises was considerable. Factors relating to punishment and personal and general deterrence required that a custodial sentence be imposed. In my opinion the sentence of 18 months’ imprisonment, given those circumstances and his past record, was by no means excessive. It was well within the appropriate range for that offence. See R v Halse (1985) 38 SASR 594, in particular the remarks of King CJ at 595 ‑ 596.
The Magistrate described the assault as cowardly. The injuries to the proprietor of the premises were by no means minor. The sequelae, both economic and non‑economic, were significant. The sentence of 6 months’ imprisonment was not outside the usual range of penalties for such an offence. Cf Higgins v Fricker (1992) 63 A Crim R 473 at 480 ‑ 481; R v Ralph (Full Court, Unreported, 23 October 1996) Judgment No S5857.
In Taylor v Samuels (1977) 16 SASR 266, King J, as he then was, said:
“A penalty may be excessive because it departs, without justification on the facts, from a standard which is just and which is regularly applied by courts which deal with the particular offence. A penalty may also be excessive because, irrespective of the existence of any such standard, the penalty is disproportionate to the seriousness of the offence under consideration. To put it another way, an appellate court may interfere (a) because, upon a consideration of the facts of the case, it is of opinion that the penalty is so disproportionate to the seriousness of the offence that it should be characterized as manifestly excessive or (b) because the penalty is so out of line with the general standard of penalties (which standard the appellate court is prepared to accept as just) that it should on that account be characterized as manifestly excessive.”
I cannot conclude that these penalties were manifestly excessive. Both penalties, given the type of offence committed, the circumstances in which they were committed, the appellant’s record and his failure to plead guilty, at least as to one of the offences, were well within the sentencing discretion of the Magistrate. Furthermore, notwithstanding the appellant’s reported contrition and his acceptance of the need for treatment, the nature of the offences and the need for deterrence dictated, in this case, that the sentences be not suspended.
The appellant argued that, because the two offences were but parts of a continuing course of conduct, a single penalty should have been imposed in accordance with the provisions of s 18A of the Criminal Law (Sentencing) Act 1988. The offending did arise out of one course of conduct. It would have been appropriate for the Magistrate to have imposed a single sentence, although it was not essential for him to do so. If he had chosen to impose one penalty only, I see no reason why that should have resulted in any overall lowering of the total penalty. Regarded as one continuous event, the circumstances could properly be construed as a breaking and entering substantially aggravated by the appellant’s attempts to escape and causing not insignificant injuries to a person endeavouring to apprehend him in the process. I would regard a single total penalty of 2 years’ imprisonment as by no means manifestly excessive.
There were, however, three important factors which were required to be taken into account in the sentencing process and which appear to have been overlooked by the Magistrate. One is the contrition of the appellant and his apparent desire for rehabilitation which the Magistrate, as I have already held, unjustifiably dismissed in the circumstances. The second is his relative youth, enhanced by his lack of self‑confidence and low self‑esteem. The third is the fact that, at least since becoming an adult, he has not been given an opportunity to demonstrate that he can abide by the terms of a bond. I do not suggest that a bond with a suspended sentence would be appropriate in this case. However, those factors seem to have been given insufficient weight by the Magistrate in determining the appropriate non‑parole period.
I have already determined that the appellant was required to serve a custodial sentence. Given what has now been revealed in the two reports before the Magistrate and having regard to the other factors I have mentioned, I believe that there was room for an opportunity to be presented for an extended period of careful and properly structured supervision directed towards the appellant’s rehabilitation as a useful member of the community. Thus, whilst I would not disturb the head sentences, I would, on that account, reduce the non‑parole period from 16 months to 10 months to enable the appellant to prove himself on parole for a reasonable time and to enable him to undertake appropriate treatment and supervision as directed by his parole officer.
I therefore make the following orders:
That the appeal be allowed.
That subject to paragraph 4 of this order, the two head sentences imposed by the Magistrates Court and the fact that they are to be served cumulatively be confirmed.
That in lieu of the non‑parole period fixed by the Magistrate, the appellant serve a non‑parole period of 10 months.

That the sentence and non‑parole period be reduced by 4 days, being the period already served pursuant to the Magistrate’s order the subject of this appeal.
That the sentences and non‑parole period so adjusted commence from the date upon which the appellant surrenders himself in accordance with Condition 4 of his Bail Agreement dated 6 March 2000 or when he is otherwise taken into custody consequent upon the determination of this appeal.
That in all other respects the order of the Magistrates Court be confirmed.

[2000] SASC 108

28 April 2000