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
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CaseChat Overview and Summary
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.
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