R v Kyriakou - [1994] QCA 361

IN THE COURT OF APPEAL [1994] QCA 361

SUPREME COURT OF QUEENSLAND

C.A. No. 216 of 1994

Brisbane

[R v. Kyriakou]

T H E Q U E E N
v.
ERROL KYRIAKOU

Applicant

The Chief Justice
Davies JA
Ambrose J

Judgment delivered : 16/09/1994
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL ALLOWED. APPEAL ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE. WITH THE CONSENT OF THE APPLICANT ORDER THAT THE APPLICANT BE GRANTED PROBATION FOR A PERIOD OF TWO YEARS ON THE USUAL TERMS SUBJECT TO THE FOLLOWING

S	PECIAL CONDITION -

THAT HE RECEIVE SUCH MEDICAL, PSYCHOLOGICAL, PSYCHIATRIC AND OTHER EXAMINATION, TREATMENT, COUNSELLING AND ADVICE WITH A VIEW TO HIS ACQUISITION OF THE "SOCIAL SKILLS" TO WHICH DR FISHER AND MR R DUTTON REFERRED IN THEIR RESPECTIVE REPORTS OF 17 MAY 1994 AND 18 MAY 1994 AS MAY REASONABLY BE REQUIRED BY HIS COMMUNITY

CORRECTIONA

L OFFICER.

ORDER BY CONSENT THAT THE APPLICANT PAY FORTHWITH TO THE REGISTRAR OF THE DISTRICT COURT AT MT ISA BY WAY OF COMPENSATION FOR THE COMPLAINANT, CHERYL JOYCE SCHMIDTKE, THE SUM OF $1,500.

CATCHWORDS:CRIMINAL LAW - sentence - unlawful stalking - s.359A Criminal Code - four occasions of contact with the complainant - psychiatric and psychological reports indicated a lack of "social skills" - s.9 Penalties and Sentences Act (1992) - no previous convictions - lack of "social skills" gave no cause to endanger others - no subsequent additional contact (for period of 6 months) made - imprisonment had not become inevitable.

Counsel:

Mr J Griffin Q.C. with him Mr M Donnelly for the

applicant

Mr D L Bullock for the respondent

Solicitors:

Conroy & Conroy for the applicant
Director of Prosecutions for the respondent

Hearing Date:2 August 1994

REASONS FOR JUDGMENT OF THE COURT

Judgment Delivered: 16/09/1994
This is an application for leave to appeal against a sentence of six months imprisonment imposed upon the applicant when he was convicted in the District Court, Mt Isa, of an offence of unlawful stalking of a woman in Mt Isa between 23 November 1993 and 7 December 1993.
The offence of unlawful stalking is constituted by an amendment to the Criminal Code which was proclaimed on 23 November 1993 and is defined in s.359A.

The facts of the case may be shortly stated:
The applicant at the material time was a 35 year old

bachelor residing in Mt Isa where he was employed to collect
garbage.

The complainant was a middle aged lady who resided in a dwelling house in Mt Isa. She conducted a hairdressing salon in another part of Mt Isa. She had a mature daughter who worked with her in that hairdressing salon.

The applicant first approached the complainant at her hairdressing salon about 4.30 p.m. on 23 November 1993. He sought to make contact with her through her employee and when she eventually spoke to him he told her that he wanted to talk to her in private. She told him that she would be finished work within 10 minutes.

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 Kyriakou

Details

AGLC: R v Kyriakou [1994] QCA 361
Case: [1994] QCA 361
Decision Date: 16/09/1994

CaseChat Overview and Summary

The case of R v Kyriakou involved the applicant, Errol Kyriakou, appealing against a six-month imprisonment sentence imposed by the District Court at Mt Isa for the offence of unlawful stalking under s.359A of the Criminal Code. The applicant had made four separate contacts with the complainant, Cheryl Joyce Schmidtke, in November and December 1993. The Court of Appeal considered whether the sentence was appropriate given the lack of previous convictions and the psychiatric and psychological reports indicating the applicant's lack of "social skills".

The primary legal issue was whether the sentence of imprisonment was appropriate under the circumstances, particularly given the lack of prior convictions and the reports suggesting that the applicant's behaviour, while socially inept, did not pose a danger to others. The Court had to weigh the need to deter similar conduct against the applicant's personal circumstances and the lack of any subsequent contact with the complainant.

The Court of Appeal found that the applicant's conduct was indeed bizarre and caused the complainant significant fear, but the lack of previous convictions and the applicant's compliance with the conditions of his bail, which included no further contact with the complainant, were significant mitigating factors. The psychiatric and psychological reports highlighted the applicant's lack of "social skills" and suggested that he could benefit from appropriate counselling and treatment rather than imprisonment. The Court concluded that the applicant's attitude did not warrant an immediate custodial sentence and that a probationary sentence with conditions aimed at addressing his social skills would be more appropriate.

The Court allowed the application for leave to appeal, set aside the sentence of imprisonment, and ordered that the applicant be granted probation for two years, subject to conditions that he receive medical, psychological, and psychiatric examination, treatment, and counselling to acquire the "social skills" necessary for appropriate social interaction. Additionally, the applicant was ordered to pay $1,500 to the complainant as compensation.

Orders