R v Chalmers - [2012] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHALMERS & ANOR
[2012] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Blue)
5 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
Appeal against two sentences imposed in the District Court - appellants charged with aggravated causing harm with intent to cause harm - Chalmers sentenced to three years and six months' imprisonment with a non-parole period of 18 months' imprisonment - Bekirovski sentenced to three years' imprisonment with a non-parole period of 12 months' imprisonment.
Whether the sentencing Judge sentenced upon incorrect factual findings - whether the sentence ought to have been suspended.
Held: Appeal allowed.
Per Kourakis CJ: Head sentences imposed are not manifestly excessive – the Judge’s starting point is a reasonable one for the offence – satisfied that a lesser term of imprisonment should not have been imposed.
Despite the violence of the appellants’ conduct and their lack of contrition, their good character, reasonable prospects of rehabilitation and time spent in custody warrant the suspension of their sentence.
Per Sulan J (Blue J agreeing): The trial Judge's erroneous view of the facts was material to the sentence of both appellants and enlivens the Court's jurisdiction to resentence - nevertheless the sentence imposed was within the range for offending of this nature - the head sentence and non-parole period is not interfered with, other than to be reduced for time spent in custody.
Having regard to the appellants' antecedents, evidence of good character, contrition and remorse there is good reason to suspend the sentences - Chalmers is sentenced to three years and one month imprisonment with a non-parole period of 13 months' imprisonment, suspended - Bekirovski is sentenced to two years and seven months' imprisonment with a non-parole period of seven months' imprisonment, suspended.
Criminal Law Consolidation Act 1935 (SA) s 23, s 24, s 353; Criminal Law (Sentencing) Act 1988 (SA) s 7A; Victims of Crime Act 2001 (SA) s 10, referred to.
House v The King (1936) 55 CLR 499; R v Sarandoglou (2010) 107 SASR 396, applied.
Harris v The Queen [1967] SASR 316, discussed.
Birch v Fitzgerald (1975) 11 SASR 114; R v Hortsmann (2010) 269 LSJS 42; Forsythe v Police [2010] SASC 214; R v Harkin (2011) 109 SASR 334; R v Wacyk (1996) 66 SASR 530, considered.

R v CHALMERS & ANOR
[2012] SASCFC 128
Court of Criminal Appeal: Kourakis CJ, Sulan and Blue JJ

KOURAKIS CJ: By reason of the error of the Judge described in [47] – [53] of the reasons of Sulan J, this Court must…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chalmers

Details

AGLC: R v Chalmers [2012] SASCFC 128
Case: [2012] SASCFC 128
Decision Date: 5 December 2012

CaseChat Overview and Summary

This matter concerned an appeal by Chalmers and Bekirovski against sentences imposed in the District Court. The appellants had been convicted of aggravated causing harm with intent to cause harm. Chalmers was initially sentenced to three years and six months' imprisonment with an 18-month non-parole period, while Bekirovski received a three-year sentence with a 12-month non-parole period, with both sentences commencing on 29 June 2012.

The court was required to determine whether the sentences imposed were manifestly excessive, particularly in light of the appellants' circumstances and the time already spent in custody. The legal issues revolved around the appropriate application of sentencing principles, including the gravity of the offence, the impact of a guilty plea, the significance of good character and prospects of rehabilitation, and the weight to be given to pre-appeal custody.

The court reasoned that while the offence involved significant violence, the appellants' good character, reasonable prospects of rehabilitation, and the time they had already served in custody warranted a modification of the original sentences. The court allowed the appeal, reducing the head sentences by five months to account for the pre-appeal custody. The remaining sentences were suspended, conditional upon the appellants entering into good behaviour bonds and, in Chalmers' case, undertaking counselling. Bekirovski's sentence was reduced to two years and seven months with a seven-month non-parole period, and Chalmers' to three years and one month with a 13-month non-parole period, both to be suspended.

Orders

Orders of the court

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Background

Background to the litigation

The sentencing Judge considered that there was no reason to distinguish between the two insofar as the starting point for the head sentence. The Judge reduced Bekirovski’s sentence to three years from three and a half years on account of his guilty plea. The Judge imposed a non‑parole period of 12 months’ imprisonment. Chalmers was sentenced to three years and six months’ imprisonment, with a non-parole period of 18 months’ imprisonment. Both sentences commenced on 29 June 2012.Background Around midnight on 7 September 2009, the victim, Koritsa, and two of his friends, James and Pedler (‘the Koritsa group’), were walking along Durham Street, Glenelg. As they walked towards Jetty Road, they saw a group of three men approaching from the opposite direction. That group included the two defendants and a third man. As the groups neared each other, there was an altercation between Bekirovski and a person in the Koritsa group. The circumstances of that altercation was the subject of a disputed facts hearing. At that hearing, the Judge heard evidence from Koritsa, James, Pedler and Bekirovski. The Judge concluded that one of the Koritsa group probably said something insulting to Bekirovski, which caused Bekirovski to kick James in the leg. The Judge found that James either threw a beer bottle at Bekirovski, hitting Bekirovski in the head, or directly hit Bekirovski over the head with a bottle. The bottle struck Bekirovski above the eye. As a result, Bekirovski has little memory of the events that followed. Dr Raeside, a forensic psychiatrist, concluded that it is likely the strike to Bekirovski’s head caused either concussion or a psychological reaction amounting to a period of dissociation. According to Dr Raeside, this was coupled with a strong emotional reaction in Bekirovski caused by the fear that he may have suffered a severe eye injury. Immediately after the bottle attack, the Koritsa group fled towards Jetty Road. The defendants’ group gave chase. On reaching Jetty Road, James and Pedler ran in a westerly direction towards the beach. Koritsa ran east. The defendants’ group chased Pedler and James. As they did, one of the defendants’ group said to Bekirovski “that’s them” or “that’s one of them”. Bekirovski did not know which of the three men had struck him. The defendant’s group eventually abandoned chasing Pedler and James. As they were walking back in an easterly direction, they saw Koritsa walking westward along Jetty Road, looking for his two friends. Upon seeing the defendants’ group coming towards him, Koritsa doubled back and ran east. The defendants’ group ran after Koritsa and accosted him on the footpath outside a convenience store on Jetty Road. Koritsa held his arms up over his head in a defensive stance. Bekirovski punched Koritsa in the face, causing Koritsa to fall to the floor inside the store. Bekirovski followed Koritsa inside the store. Chalmers then entered the store. Bekirovski stomped on Koritsa a number of times in the area of the upper body. Chalmers stomped on Koritsa’s legs and buttocks. Chalmers then grabbed Bekirovski, pulled him away, and the two ran away. The attack in the convenience store lasted less than five seconds.The appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

By a small margin I am persuaded that the appellants’ good character, their reasonable prospects of rehabilitation and, most importantly, the time spent in custody warrant the suspension of their sentences despite the violence of their conduct and their lack of contrition.Conclusion I would allow the appeal. I would reduce the sentences of imprisonment imposed by the sentencing Judge by five months to take into account the period of imprisonment served by the appellants pending this appeal. I would suspend the balance of the sentences. The sentence in respect of Chalmers is that he be imprisoned for three years and one month with a non-parole period of 13 months. The sentence is to be suspended upon him entering into a bond in the sum of $500 to be of good behaviour. I would also order that he be under the supervision of a community corrections officer and that he undertake counselling as directed by that officer. The sentence in respect of Bekirovski is that he be imprisoned for two years and seven months with a non-parole period of seven months. The sentence is to be suspended upon him entering into a bond in the sum of $500 to be of good behaviour. SULAN J: This is an appeal against two sentences imposed in the District Court. The appellants and defendants were charged with aggravated causing harm with intent to cause harm, following an incident occurring in Glenelg in the early hours of 7 September 2009. The maximum penalty for the offence is 13 years’ imprisonment. The defendant, Bekirovski, pleaded guilty on 20 February 2012, being the morning his trial was to commence. After a trial by Judge alone, the defendant, Chalmers, was found guilty on 1 March 2012. The sentencing Judge considered that there was no reason to distinguish between the two insofar as the starting point for the head sentence. The Judge reduced Bekirovski’s sentence to three years from three and a half years on account of his guilty plea. The Judge imposed a non‑parole period of 12 months’ imprisonment. Chalmers was sentenced to three years and six months’ imprisonment, with a non-parole period of 18 months’ imprisonment. Both sentences commenced on 29 June 2012.Background Around midnight on 7 September 2009, the victim, Koritsa, and two of his friends, James and Pedler (‘the Koritsa group’), were walking along Durham Street, Glenelg. As they walked towards Jetty Road, they saw a group of three men approaching from the opposite direction. That group included the two defendants and a third man. As the groups neared each other, there was an altercation between Bekirovski and a person in the Koritsa group. The circumstances of that altercation was the subject of a disputed facts hearing. At that hearing, the Judge heard evidence from Koritsa, James, Pedler and Bekirovski. The Judge concluded that one of the Koritsa group probably said something insulting to Bekirovski, which caused Bekirovski to kick James in the leg. The Judge found that James either threw a beer bottle at Bekirovski, hitting Bekirovski in the head, or directly hit Bekirovski over the head with a bottle. The bottle struck Bekirovski above the eye.

Ratio Decidendi

Legal Principle Established

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