R v Hronopoulos

[2017] SASCFC 143

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HRONOPOULOS

[2017] SASCFC 143

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Hinton)

30 October 2017

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER

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

Application for permission to appeal against sentence for one count of aggravated threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA). The offending was aggravated by virtue of the threatened use of a firearm. The applicant was sentenced to imprisonment for eight weeks after a reduction of two weeks to take account of time spent in custody. The sentence was suspended upon the applicant entering into a bond to be of good behaviour for three years.

At issue on appeal was, inter alia, the contention that the sentencing judge had insufficient regard for the mental disorder which the applicant was suffering, namely bipolar disorder, and that the sentence was, in all the circumstances, manifestly excessive.

Held per Stanley J (with Blue and Hinton JJ agreeing): Permission to appeal refused on all grounds.

1.  The judge clearly had regard to whether there was an alternative to the imposition of a sentence of imprisonment (at [39]).

2.  The judge considered that the applicant’s mental illness diminished his responsibility for the offending which he plainly took into account.  It is however important to recognise that the applicant’s psychiatric condition diminished his moral culpability only to the limited extent that his lack of empathy resulted in him not appreciating the extent of the fear the threat he made might arouse.  None of that detracts from the fact that the applicant was aware of the nature and gravity of the act charged and knew that what he was doing was wrong (at [45]).

3.  No irrelevant matters were taken into account (at [53]).

4.  The evidence supported the Judge’s findings (at [57]).

5.  The sentence is not manifestly excessive.  There is much to be said for the imposition of a bond subject to conditions that would encourage the applicant to seek assistance for his psychiatric issues and to deter him from similar conduct in the future (at [64]-[65]).

Per Hinton J:  Within the bounds of proportionality, a sentence is to be fashioned having regard to the protection of the community and the purposes of punishment that fits the offending and the offender.  Within that framework the question of how a particular mental illness influences the sentencing outcome will be a product of its symptoms and consequences for the defendant and the bearing that such symptoms and consequences have on achieving the purposes of the sentencing task.  Critical to the task will be the exposure of a link grounded in the evidence before the sentencing court between the illness and any of the purposes…