R v Djordjevic

[2012] SASCFC 69

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DJORDJEVIC

[2012] SASCFC 69

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Peek)

15 June 2012

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

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

Application for permission to appeal against sentence - whether sentencing Judge erred in failing to suspend term of imprisonment.

Applicant convicted by jury of five counts of unlawful sexual intercourse arising from  one occasion - complainant was aged 15 at time of offending - sentencing Judge imposed immediate custodial sentence of two years and three months with a non-parole period of 13 months.

Applicant also applied to introduce fresh evidence which applicant argued could have affected the exercise of sentencing Judge's discretion had it been available at  time of sentencing - fresh evidence consisted of a psychological report in relation to applicant and a medical report detailing medical conditions suffered by applicant's mother and sister and the harship they would face as a result of appellant's imprisonment.

Held: Application for permission to appeal refused - sentencing Judge did not err in the exercise of his discretion not to suspend the sentence.

Application to introduce fresh evidence refused - material is not fresh evidence and ought not be received by the Court -  psychological report concerning the applicant could not affect sentencing Judge's decision not to suspend sentence - medical report concerning medical conditions suffered by the appellant's sister and mother adds very little to submission put to and dealt with by sentencing Judge that both the appellant’s mother and sister needed his support - sentencing Judge correctly weighed up that information when considering whether there was good reason to suspend.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Dorning (1981) 27 SASR 481, applied.

R v DJORDJEVIC
[2012] SASCFC 69

Court of Criminal Appeal: Vanstone, David and Peek JJ

1. VANSTONE J:     I would refuse permission to appeal.  I agree with the reasons of David J.

2. DAVID J:              This is an application for permission to appeal against sentence, permission having been refused by a single Judge of this Court.After a trial by jury the applicant was convicted of five counts of unlawful sexual intercourse with a female.  The five charges arose from the one occasion and included three counts of cunnilingus, followed by an act of digital penetration of the victim’s vagina and a further count of vaginal penile intercourse.

3. At the time of the incident the applicant was aged 45 years and the victim (“V”) had just turned 15 years of age.  The applicant was aware of V’s age.

4. The trial Judge, by the use of s 18A of the Criminal Law (Sentencing) Act 1988 (SA), sentenced the applicant on all five counts to one term of imprisonment of two years and three months and fixed a non-parole period of 13 months. The Judge declined to suspend the sentence.

5. The applicant appeals against the Judge’s decision not to suspend the sentence.  There is no appeal challenging the period of either the head sentence or the non-parole period.

   Facts

6. On the evening of the offending, the applicant met V for the first time.  He knew V’s friend, (“C”), a 19 year old female.  He had arranged to meet C at the Adelaide Railway Station and was unaware that C would be in the company of V.  When all three met, he drove both girls to a house attached to a Serbian monastery on an isolated semi rural property located in Inglewood.  On the way the applicant and C purchased alcohol, and V contributed $5 towards the purchase.  Throughout the course of the evening V drank six cans of Red Bear, had a shot of vodka, and two scotch and cokes.  The sentencing Judge found that whilst the applicant did not encourage V to consume alcohol, he did not stop her from doing so.  The drinking took place when they had reached the house at Inglewood.

7. Whilst at the house, and when C was in another part of the house, the applicant showed V a pornographic movie and then took her to his bedroom where he performed three acts of cunnilingus, one act of digital penetration of V’s vagina, and one act of penile penetration of her vagina.  Evidence was led at the trial that V was not sexually experienced and did not really know what was going on.  After the offending V contacted a friend by phone and then rang the police and reported that she had been raped.

8. At trial the applicant pleaded not guilty and gave evidence that he had passed out in his bed and woke to find V in bed with him with her hand around his penis.  The jury obviously rejected that explanation. 

   Appeal

9. There are two grounds of appeal.  Ground 1 complains that the sentencing Judge erred in the exercise of his discretion by failing to suspend the term of imprisonment which was imposed.  Ground 2 is an elaboration of ground 1; setting out the circumstances where the Judge has so erred.  As I have indicated, on both of those grounds permission to appeal was refused by a single Judge and is sought to be re-argued before this Court.

10. Also before this Court there is an application for the introduction of fresh evidence which the applicant argues could have affected the exercise of the sentencing Judge’s discretion if it had been available at the time of sentencing.  Much of this material is exhibited to the affidavit of Ursula Marion Irene Matson dated 21 May 2012.  There are two aspects to this application for fresh evidence.  Firstly, a psychological report from Mr Alan Fugler dated 1 May 2012.[1]  Secondly, two medical reports from a general practitioner, Dr Elizabeth Lalor, dated 5 May 2012[2] and 21 May 2012.[3]  Those reports concern the medical condition of the applicant’s sister and effect that the term of imprisonment would have upon her.  Dr Lalor then inferentially also deals with the effect imprisonment would have upon the applicant’s mother.

    [1]    Exhibit UM5 to the affidavit of Ursula Marion Irene Matson dated 22 May 2012.

    [2]    Exhibit UM4 to the affidavit of Ursula Marion Irene Matson dated 22 May 2012.

    [3]    Exhibit UM5 to the affidavit of Ursula Marion Irene Matson dated 22 May 2012.

11. In addition to the reports of Dr Lalor and Mr Fugler, counsel for the applicant also seeks to put before the Court an affidavit of the applicant[4] and an affidavit of the applicant’s sister.[5]  The affidavit of the applicant provides reasons for his failure to obtain a psychological report or medical reports prior to sentencing submissions regarding his sister’s and mother’s medical conditions.  The affidavit of the applicant’s sister details her and her mother’s medical conditions, the support that the applicant would provide them with and the effect that his imprisonment would have upon them both.

    [4]    Affidavit of Bogdan Djordjevic dated 21 May 2012.

    [5]    Affidavit of Milica Djordjevic dated 21 May 2012.

12. The respondent’s position is that the additional material is not fresh evidence.  However, the respondent does not object to such material being received by the Court to enable it to determine whether such material does constitute fresh evidence.

    Grounds 1 and 2

13. I deal first with grounds 1 and 2.

14. The applicant now argues that, when considering the question of whether to suspend the term of imprisonment, the sentencing Judge erred taking into account the following topics:

    1.When he said:

    There is no doubt the victim consumed a considerable quantity of alcohol that night.  I accept that you did not encourage her to do so, but you did not stop her from doing so.

    2.Also he said:

    The victim was an immature girl. There was a marked disparity between your ages. She was highly vulnerable at this isolated location. Her friend had removed herself to another part of the house and you took advantage of that vulnerability on the jury’s verdict.

    3.Not enough account was given for the applicant’s previous good record which is acknowledged and the fact that he had a good employment record.

    4.Not enough account was taken for the effect of the term of imprisonment on the mother and the sister of the applicant.

15. In my view, it has not been demonstrated that any mistake was made by the sentencing Judge on any of these topics.  The sentencing Judge accurately described the situation concerning alcohol and there is no suggestion that the applicant was being penalised for not stopping V from drinking.  The fact that he mentioned that in his sentencing remarks is an important part of the narrative of events.  Furthermore, the sentencing Judge was quite correct in describing V’s situation at the time as being “vulnerable”.  V was in an isolated location with a much older man whom she had never met before and C was clearly in another part of the house when these events took place.

16. The sentencing Judge also took into account the applicant’s good record.  He said:

    I turn now to your personal circumstances. You are now aged 46 years. Save for two irrelevant traffic matters you come before the court with an otherwise unblemished record. You have in the past been a successful member of the Ford Owners Club.

    You come from a stable and happy family, born to Serbian parents who migrated to Adelaide in 1963. You completed your education to year 12, had an apprenticeship as a fitter and turner. You have maintained an excellent work ethic. A testimonial from your employer dated 2 February 2012 shows that you are extremely highly regarded. Your employer has made it plain to you that if you receive an immediate custodial sentence then your employment would have to be terminated.

    Clearly, the sentencing Judge has taken into account those matters concerning the applicant’s good record and employment when exercising his discretion as to whether or not to suspend the term of imprisonment. 

17. The sentencing Judge also dealt with the effect of imprisonment upon the applicant’s dependants, namely his mother and sister.  The sentencing Judge said:

    You currently reside with your sister, with whom you have a very good relationship. She is here today, she is in poor health as is your mother. You provide support for each of them, as well as your sister’s 15-year-old child. An immediate custodial sentence would impact adversely upon them, but, while significant, it is not extreme or exceptional.

    These are all matters which the Judge carefully considered and had to balance against the gravity of the offending.  I can see no mistake in the exercise of his discretion not to suspend the sentence.  However, before finally deciding whether permission to appeal should be granted on these two grounds, I turn to the question of fresh evidence.

    Fresh evidence

18. I deal first with the application to present the report mentioned above from the psychologist, Mr Fugler.  Both the applicant and the respondent on this appeal acknowledged that the test of whether fresh evidence should be allowed on a sentencing appeal is governed by the decision of R v Dorning,[6] where three criteria were set out:[7]

    In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible, but the Full Court will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth.

    [6] (1981) 27 SASR 481.

    [7] (1981) 27 SASR 481 at 485.

19. Mr Stewart, counsel for the applicant, argues that the contents of Mr Fugler’s report would have had an influence on the decision whether or not to suspend the sentence if provided at the time.  In particular, he points to the part of the report which relates that, when taking a history from the applicant, it was discovered that the applicant claimed to have been sexually abused between the ages of 10 and 16; initially by a Serbian monk, then a Greek monk, then a Greek Orthodox bishop, and finally a Russian transsexual.  All of these people were associated with the church to which the applicant belonged.  The report then went into details of that abuse. 

20. Mr Stewart argues that this material, coming after sentence, illustrates a form of contrition on behalf of the applicant as, being a victim of sexual abuse himself, he was able to relate to how the victim must have felt as a result of his offending.  However, Mr Fugler in his report says:

    To what extent the experiences have had a negative effect on his psychological functioning since was difficult to clearly ascertain, although it is possible the injudicious decision to become sexually involved with [V] may have been influenced by a combination of his sexual experiences at a young age and the disinhibiting effects of alcohol.

    Mr Fugler went on to say that the applicant did not show any obvious signs of psychological impairment and did not need to be referred to a treating psychologist or psychiatrist. 

21. In my view, that material is not capable of supporting the argument that such contrition is now established and it could not affect the sentencing Judge’s decision not to suspend the sentence, bearing in mind the facts of the case.  Accordingly, I rule that the material is not fresh evidence and it ought not be received by the Court.  The applicant had pleaded not guilty (as he was entitled to).  V was cross‑examined and the applicant gave evidence contradicting her version of events.  The material in Dr Fugler’s report that somehow his previous sexual experiences many years before could explain and mitigate his behaviour is problematical to say the least.  In my view, it would not have an influence on the sentencing Judge’s decision not to suspend the sentence if placed before him.  I also add that the reason such a report was not sought at the time is rather nebulous.  It appears as though it was combination of not realising the importance of obtaining a psychological report and a lack of funds at the time.  Nevertheless, I consider the report itself could not have changed the decision the sentencing Judge made. 

22. I deal with the application to introduce fresh evidence by way of a report from a general practitioner, Dr Lalor, which emphasises the hardship that the applicant’s imprisonment would impose upon his mother and sister.  Dr Lalor said in that report that the applicant’s sister is suffering from agoraphobia, depression and anxiety, and that her brother (the applicant) made her feel secure.  The report also said that the applicant’s mother has limited mobility and suffers from pain in her knee, lower back, and right shoulder. 

23. In my view, this material adds very little to the submission put to and dealt with by the sentencing Judge that both the applicant’s mother and sister needed his support.  The Judge correctly weighed up that information when considering whether there was good reason to suspend.  I can find no mistake in the exercise of his discretion in coming to the decision that he did.  Again, I rule that the material is not fresh evidence and it ought not be received by the Court. 

24. Consequently, I would refuse permission to appeal on both grounds.

    Conclusion

25. I would refuse permission to appeal.

26. PEEK J:   I would refuse the application for permission to appeal.  I generally agree with the reasons of David J.