Phillipou v The Queen

Case [2020] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

PHILLIPOU v THE QUEEN

[2020] SASCFC 21

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)

26 March 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Appeal against the sentence of a Judge of the District Court imposed on a conviction for trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA).

The appellant pleaded guilty, after the matter had been listed for trial, to trafficking 3.11 grams of methylamphetamine seized from his residence. The methylamphetamine was located in the kitchen, together with $21,750 in cash, numerous mobile phones and other drug related paraphernalia. Prior to the police search of the house but on the same day, a woman had visited the appellant’s house. The appellant also alleged that his acquaintance, AV, had been in the house and that the money and methylamphetamine were AV’s. The woman was apprehended on the same day and found to be in possession of methylamphetamine.

The Judge, ruling on a disputed facts hearing, rejected the appellant’s story that AV brought the methylamphetamine to his house. The Judge also held that the methylamphetamine on the woman had been supplied by the appellant. The appellant was sentenced to 4 years and 5 months imprisonment and a non-parole period of 3 years 6 months and 2 weeks, which was four-fifths of the head sentence because the Judge sentenced the appellant as a serious repeat offender under s 53(1) of the Sentencing Act 2017 (SA) (the Sentencing Act).

The appellant appeals on four grounds:

1.      That the Judge erred in sentencing the appellant against the background of a prior uncharged act of trafficking methylamphetamine to the woman (ground 1).

2.      That the Judge infringed the De Simoni principle in that sentence was passed upon crimes for which the appellant was not charged (ground 1A).

3. That the Judge erred in sentencing the appellant as a serious repeat offender because those provisions do not apply retrospectively in that offences committed prior to the commencement of the current Sentencing Act are not qualifying offences (ground 2).

4.      That the Judge erred in not reducing the sentence on account of the appellant’s guilty plea (ground 5).

After the Court reserved its decision, the appellant asked that the hearing be reopened for the purposes of receiving further evidence. The Court was provided further material, in relation to the appellant’s partner’s diagnosis of terminal cancer and the care of their son, without objection, to consider whether to admit it as further evidence on appeal. The appellant sought leave…

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Phillipou v The Queen [2020] SASCFC 21
Case
[2020] SASCFC 21
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Phillipou against his sentence, heard by the Supreme Court of South Australia. The appeal was brought following a significant change in Mr Phillipou's personal circumstances after his initial sentencing. Specifically, his partner and the mother of his young child, Ms Czaplinski, had been diagnosed with terminal cancer, which substantially impacted her capacity to care for herself and their child. Mr Phillipou sought to introduce fresh evidence regarding Ms Czaplinski's diagnosis and prognosis to support his appeal.

The central legal issues before the Court were whether the fresh evidence concerning Ms Czaplinski's terminal illness should be admitted on appeal, and if so, whether these changed circumstances warranted setting aside the original sentence. The Court was required to consider whether the appellant's personal circumstances, as altered by his partner's illness, were so exceptional as to outweigh the paramount considerations of community safety and deterrence, and whether he should still be sentenced as a serious repeat offender. Furthermore, the Court had to determine if, in light of all existing circumstances, a Home Detention Order would be an appropriate sentencing disposition.

The Court reasoned that the evidence of Ms Czaplinski's illness was admissible because it fundamentally altered the weight of the appellant's personal circumstances, particularly concerning his role in caring for his young son. The Court acknowledged that the impact of imprisonment on the welfare of a child is a relevant sentencing consideration, and this had become significantly more pressing due to Ms Czaplinski's terminal diagnosis. The Court found that the welfare of the child and Ms Czaplinski justified a sentencing disposition that would allow Mr Phillipou to care for them. Despite the seriousness of the offending, the Court was satisfied that a substantial sentence served on home detention would maintain sentencing standards, allow for supervision, and enable Mr Phillipou to fulfil his responsibilities as a father and carer, without undermining public confidence in the administration of justice.

Consequently, the Court granted permission to appeal on the additional grounds, admitted the fresh evidence, and allowed the appeal. The original sentence was quashed, and a Home Detention Order was made pursuant to section 71(1) of the Sentencing Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would grant permission to appeal but dismiss ground 2 of the appeal.Fresh evidenceApplication After the Court reserved its decision on 19 August 2019, Mr Phillipou asked that the hearing be reopened for the purpose of receiving further evidence. The Court reconvened on 29 October 2019. The appellant’s counsel informed the Court that Ms Czaplinski, Mr Phillipou’s partner and the mother of his child, had been diagnosed with terminal cancer. The appellant sought leave to amend the grounds of appeal to include grounds that the sentence be set aside because of those changed circumstances. Those grounds are:1.Having regard to the evidence previously not available to the Learned Sentencing Judge (LSJ), the Court should be satisfied that the sentence should be quashed on the basis that, having regard to the new material:1.1 the appellant’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and1.2 it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.2.Having regard to all of the circumstances now existing, the sentence should be quashed and a Home Detention Order be imposed. The Court gave directions as to the filing of further material and adjourned the matter to a further hearing on 21 November 2019. On that day, the Court was provided with the following further material without objection for the purpose of considering whether to admit it as further evidence on the appeal. A report of Professor Price, an oncologist, confirmed that Ms Czaplinski had advanced colorectal cancer. Ms Czaplinski’s prognosis is uncertain and depends on response to therapy. The average life expectancy for the type and stage of cancer contracted by Ms Czaplinski is 20 to 24 months, but there is a risk of it being less in Ms Czaplinski’s case if she does not respond to the chemotherapy she is undertaking. The more common complications of that chemotherapy are fatigue, infection risk, diarrhoea and neuropathy. Her condition will be very painful and there is a risk of bowel complications. Ms Czaplinski’s capacity to look after herself and her family will be substantially reduced. Professor Price’s opinion is that she will require ‘significant assistance as time passes’. Ms Czaplinski swore an affidavit in which she deposed that:·her son, Arlo, is now 14 months old; ·she is 39 years of age; and·she receives chemotherapy on a 14-day cycle. Ms Czaplinski described this cycle as follows. On the first Monday, she receives chemotherapy over a period of four hours in hospital and is discharged with a drip feed that is connected to her arm. The drip feed remains in place until Wednesday. Ms Czaplinski limits her contact with Arlo in the first part of the cycle because of her fears about its toxicity. Her daughter helps her look after Arlo in those first three days of the cycle, but that assistance is limited because she is employed on a casual, ad hoc, basis. In her absence, Ms Czaplinski relies on Mr Phillipou’s parents. Ms Czaplinski deposed that she feels very drained by Wednesday, she is sensitive to the cold and has a sensation of pins and needles in her fingers, toes and mouth. She suffers nausea. She remains tired and ‘toxic’ for seven days after the drip is disconnected. She suffers from sweats and washes her clothes separately from the other family washing because she is concerned about the effect of that toxicity on Arlo. She recuperates in the period from Wednesday to Monday.

Decision

Reasons for decision

It is plain that the care of Mr Phillipou’s son, an important aspect of which is the father-son relationship, and the effect of Mr Phillipou’s incarceration on that care and relationship, was a matter on which Mr Phillipou relied in the sentencing hearing. Indeed, in the generality of cases in which the parent of a young child is to be sentenced, it is both relevant and important to consider the effects of imprisonment on the welfare of the child. It was a matter referred to by the Judge in his sentencing remarks, and hence, it must be inferred, relied upon by his Honour.Conclusion At the time that Mr Phillipou was sentenced, the care of his young son and the importance of the paternal relationship did not have the weight it now has because of Ms Czaplinski’s illness. That is precisely why the evidence of her illness is admissible on the appeal. I would give permission to appeal on the additional grounds of appeal and would receive the further evidence. The importance of parental love and affection, particularly in the early development of a child, is self-evident. When the parent is suffering a terminal illness, his or her child is necessarily deprived of that affection and support. There are sufficient prospects in this case that, with the support and guidance of his parents, Mr Phillipou will fill at least some of that loss, and provide meaningful assistance to the help provided by his parents. There is also a chance that he will, through that care, make amends for the suffering his offending has caused. I would allow the appeal on grounds 1.1 and 2 of the additional grounds. The welfare of Mr Phillipou’s child and Ms Czaplinski justifies a sentencing disposition which will allow him to care for them in the immediate future. It is difficult to reduce the head sentence or the non-parole period by much given the seriousness of the offending. Section 71(2)(a) of the Sentencing Act provides that a court must not make a home detention order if it would, or may, undermine public confidence in the administration of justice. It was a consideration of that kind which moved this Court to set aside a home detention order made in sentencing a drug trafficker in R v Filipponi,[15] under the Criminal Law (Sentencing) Act 1988 (SA) provisions, even though those provisions did not include an equivalent of s 71(2)(a). In the special circumstances of this case, I am satisfied that Mr Phillipou is a suitable person to serve the sentence on home detention, despite his past offending, because of the support he will have from his parents and because of the importance he attaches to caring for his son. [15] (2016) 126 SASR 464. A substantial sentence served on home detention will maintain sentencing standards, optimise the supervision of Mr Phillipou by Community Corrections and serve the purpose of confining Mr Phillipou to the home in which he will take on his responsibilities as a father and as his partner’s carer. I would, therefore, make a home detention order pursuant to s 71(1) of the Sentencing Act.

Ratio Decidendi

Legal Principle Established

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