R v Athanasas

Case [2014] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ATHANASAS

[2014] SASCFC 19

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Parker)

4 March 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY

The appellant obtained monies from victims by deceiving them into investing in a bogus business.  The appellant was sentenced to eight years' imprisonment with a non-parole period of four years and nine months' imprisonment after pleading guilty to five counts of theft totalling $564,000.  The appellant contended that the head sentence was manifestly excessive when compared to sentences for similar offending.  The appellant's conduct was no less serious than cases featuring a breach of trust.

Appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 134; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v King (1936) 55 CLR 499; Queen v Morse (1979) 23 SASR 98; Markarian v R (2005) 215 ALR 213; Ienco v Kraft (1990) 53 SASR 40; R v Jongewaard [2009] SASC 346; R v Nemer (2003) 87 SASR 168, applied.
Munda v Western Australia [2013] HCA 38; R v Cavanagh [1999] SASC 418, discussed.
R v Dubois (2004) 88 SASR 304; R v Powell (2001) 217 LSJS 164; R v Hann (unreported, Supreme Court of South Australia, S6742, 17 August 1998); Police (SA) v Curtis (2004) 145 A Crim R 587; R v Davies (1996) 88 A Crim R 226; R v Payne (2004) 89 SASR 49, considered.

R v ATHANASAS
[2014] SASCFC 19

Court of Criminal Appeal:       Sulan, David and Parker JJ

SULAN J

Introduction

  1. This is an appeal against sentence. The appellant, Peter Athanasas, pleaded guilty to five counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for each offence is 10 years’ imprisonment. The offending occurred between 1 March 2005 and 20 May 2008. The total amount stolen from five victims was $564,000. The sentencing Judge imposed one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) of eight years’ imprisonment, with a non-parole period of four years and nine months’ imprisonment. 

    Background

  2. The first count to which the appellant pleaded guilty occurred between 1 March and 7 April 2005, when the appellant received $50,000 from his victim.  The second count totalled $150,000, the money having been received between 6 April and 27 May 2005.  The third count of the theft of $100,000 occurred between 3 August and 30 August 2005.  The fourth and fifth counts involved a theft from a husband and wife totalling $64,000 on the first occasion, and $100,000 on the second occasion.  Those amounts were stolen from…

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AGLC
R v Athanasas [2014] SASCFC 19
Case
[2014] SASCFC 19
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by Peter Athanasas. The appellant had pleaded guilty to five counts of theft, contrary to section 134 of the *Criminal Law Consolidation Act 1935* (SA). The offences, which occurred between March 2005 and May 2008, involved the theft of a total of $564,000 from five victims. The sentencing judge imposed a single penalty of eight years’ imprisonment, with a non-parole period of four years and nine months. The appeal was heard by Sulan, David and Parker JJ.

The central legal issues before the Full Court were whether the sentence imposed by the sentencing judge was manifestly excessive, and whether the judge had properly applied the principles of sentencing in determining the length of the imprisonment and the non-parole period. The court was required to consider the nature and circumstances of the offences, the total amount stolen, the impact on the victims, the appellant's personal circumstances, and the credit given for his late guilty plea.

The court reasoned that the sentencing judge had correctly identified the gravity of the offences, which involved a significant sum of money obtained through fraudulent misrepresentations about a non-existent business. The judge also properly took into account the emotional and psychological damage suffered by the victims, as well as their financial distress. While acknowledging the appellant's personal circumstances, including his post-traumatic stress disorder and anxiety, the court found that these did not mitigate the seriousness of the offending to the extent that a lesser sentence would be appropriate. The court also considered the delay in proceedings and the credit given for the guilty plea, noting that the plea was entered late. The judge's approach to imposing a single sentence under section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) was also found to be appropriate, reflecting the overall criminality.

The appeal was dismissed, with the court concluding that the sentence imposed was not manifestly excessive and that the sentencing judge had applied the correct legal principles.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence. The appellant, Peter Athanasas, pleaded guilty to five counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for each offence is 10 years’ imprisonment. The offending occurred between 1 March 2005 and 20 May 2008. The total amount stolen from five victims was $564,000. The sentencing Judge imposed one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) of eight years’ imprisonment, with a non-parole period of four years and nine months’ imprisonment. Background The first count to which the appellant pleaded guilty occurred between 1 March and 7 April 2005, when the appellant received $50,000 from his victim. The second count totalled $150,000, the money having been received between 6 April and 27 May 2005. The third count of the theft of $100,000 occurred between 3 August and 30 August 2005. The fourth and fifth counts involved a theft from a husband and wife totalling $64,000 on the first occasion, and $100,000 on the second occasion. Those amounts were stolen from the appellant’s victims at a time after the appellant had been declared bankrupt. The appellant represented to the victims that he was involved in a business of buying and selling mobile phones. The five victims gave money to the appellant, believing that they were investing funds in what they were told was a successful business. He offered them significant returns upon their investments. A number of the victims borrowed money to invest in the business. No genuine business ever existed. The appellant used the money to promote his lifestyle. At no time did the appellant use the monies he stole to support a genuine business. The effect the appellant’s offending had upon his victims left them emotionally and psychologically damaged. All of them have encountered financial stress as a result of the offending. When the appellant obtained their money, he never intended to use it to his victims’ benefit. There was never any prospect of them recovering their losses. At the time that he was sentenced, the appellant was 43 years of age. He had no prior convictions of relevance. He had previously worked as a taxi driver, but was unable to continue that work after he had been assaulted during the course of his employment. He had suffered a post-traumatic stress disorder after that assault which occurred in September 2005. He suffers from anxiety. He has an 11-year-old daughter who resides with her mother in Melbourne. The sentence The sentencing Judge observed that each offence involved a separate incursion into crime. He imposed one sentence pursuant to s 18A of the Sentencing Act. In so doing, he observed that, had he sentenced the appellant for each offence separately, he would have made the sentence on counts 1 and 2 partially concurrent, the sentence on count 3 cumulative, and the sentences on counts 4 and 5 concurrent, but cumulative with the other sentences. There was a delay of about three years from the time of arrest to the date of sentence. The Judge observed that much of the delay was due to factors relevant to the appellant. The pleas of guilty came at a very late stage of the proceedings. The Judge gave credit of 15 per cent for the plea. He observed that there had been some considerable delays in the matter finally being resolved, during which time the appellant had spent some time in custody and a lengthy period on home detention bail. The Judge reduced the sentence by six months, having regard to time spent by the appellant in custody and on home detention bail.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PARKER J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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