R v Manolakis - [2008] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MANOLAKIS
[2008] SASC 129
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Layton)
15 May 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Applicant found guilty by jury verdict of threatening to harm a Commonwealth public official, causing harm to a public official, and two offences of obstruction of a Commonwealth public official - trial Judge imposed one sentence for all offending - Judge remarked that he had regard to and gave full credit for the time the applicant spent in custody prior to sentencing, a period of nine months and 19 days - imposed a term of imprisonment of six months but released the applicant immediately on his agreeing to entering into a recognisance for a period of two years - terms of bond included: that he obey all lawful directions given to him by a Community Corrections Officer, and specifically any direction given to him by that Officer in relation to any psychological or psychiatric treatment and counselling; that he not communicate with a particular politician or his staff; and that he not communicate with any State or Federal politician without the express written permission of the Officer - whether Judge erred in imposing the additional sentence of six months' imprisonment - whether the terms of the bond were warranted.
Held: Permission to appeal should be granted and the appeal should be allowed - per Gray and Layton JJ: Judge erred in imposing the additional sentence of six months' imprisonment - no additional sentence of imprisonment should have been imposed - the terms of the bond were not warranted in three respects: the evidence before the Judge did not suggest that on-going psychiatric treatment or counselling was necessary; the condition that he not communicate with any State or Federal politician without the express written permission of the Community Corrections Officer was unwarranted; and there was no basis for the imposition of supervisory conditions by the Community Corrections Officer - the period of the bond, two years, was too long - applicant re-sentenced to a term of imprisonment of nine months and 19 days, backdated to commence on the date on which the applicant was taken into custody - applicant to be released without any further punishment.
Per White J: the sentence of six months' imprisonment should be set aside, and in lieu thereof the applicant sentenced to imprisonment for 10 weeks - upon the applicant entering into a recognizance containing certain conditions, he should be released forthwith.
Criminal Code Act 1995 (Cth) s 147.1, s 147.2 and s 149.1; Crimes Act 1914 (Cth) s 4B, s 16A, s 16E, s 17A and s 20; Criminal Law (Sentencing) Act 1988 (SA) s 6 and s 32; Criminal Law Consolidation Act 1935 (SA) s 269K,…

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 Manolakis

Details

AGLC: R v Manolakis [2008] SASC 129
Case: [2008] SASC 129
Decision Date: 15 May 2008

CaseChat Overview and Summary

In the matter of R v Manolakis, the applicant appealed against his sentence, arguing that the trial judge had erred in imposing an additional term of imprisonment and in setting certain conditions of his recognisance bond. The applicant, found guilty by a jury verdict of multiple offences including threatening a Commonwealth public official and obstructing a public official, was sentenced to six months' imprisonment but released immediately upon agreeing to a recognisance bond. The applicant challenged the legality of his sentence and the conditions of his bond, particularly those relating to psychiatric treatment and communication restrictions.

The legal issues before the court involved whether the trial judge had erred in imposing an additional sentence of imprisonment and whether the terms of the recognisance bond were warranted. The applicant argued that the trial judge should not have imposed any additional term of imprisonment beyond the nine months and 19 days he had already spent in custody before sentencing. Furthermore, the applicant contested the necessity and proportionality of specific conditions of his bond, including mandatory psychiatric treatment, restrictions on communication with politicians, and the overall duration of the bond.

The court held that permission to appeal should be granted and the appeal should be allowed. The judges found that the trial judge had indeed erred in imposing an additional six months of imprisonment, as no such additional sentence should have been imposed. The court also determined that the terms of the recognisance bond were unwarranted in three respects: there was no evidence suggesting the necessity of ongoing psychiatric treatment; the condition prohibiting communication with any State or Federal politician without written permission was unjustified; and there was no basis for the Community Corrections Officer to impose supervisory conditions. Additionally, the court found that the two-year duration of the bond was excessive. Consequently, the applicant was re-sentenced to a term of imprisonment of nine months and 19 days, backdated to commence on the date he was taken into custody, and was to be released without any further punishment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant has no prior convictions at all.Submissions Concerning the Psychiatric Evidence The applicant made three complaints about the judge’s use of the psychiatric evidence. First, the applicant submitted that the judge should not have referred at all to a report of the psychiatrist Dr Raeside dated 21 February 2007. Dr Raeside provided that report to the court at a time when the court was considering ordering an investigation into the applicant’s fitness to stand trial.[9] Dr Raeside conducted one examination of the applicant and reported his opinion that the applicant was fit to stand trial. The prosecution invited the judge to consider the content of Dr Raeside’s report in sentencing. The applicant opposed any use at all of the report.[9] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 269K. Secondly, the applicant submitted that the judge had failed to have sufficient regard to the opinion of a second psychiatrist, Dr Davis, dated 17 October 2007. The applicant had been treated by Dr Davis between September 1999 and October 2001. In addition, Dr Davis reviewed the applicant on 11 October 2007 before providing his report. The third submission was that the judge had been in error in concluding that the applicant required ongoing psychiatric care and counselling. In relation to the psychiatric evidence, the judge said:I have had regard to two psychiatric reports prepared about you. The first is from Dr Raeside and was prepared in February of 2007, relating to your fitness to plead. He thought you were fit. You suffered a depressive illness about 10 years ago, which has been treated and controlled with anti-depressant medication. Dr Raeside considered that you have an underlying paranoid personality disorder, or perhaps even an evolving paranoid schizophrenia, although I think Dr Davis was not prepared to go that far.A much more recent report in mid-October 2007 was prepared by Dr Davis and refers to long-standing chronic depression. Dr Davis saw you over a period of about two years, until about October 2001. You have maintained your medication under the guidance of a medical practitioner. It seems your depressive order is in remission by virtue of the medication you are taking. Paranoid personality traits have come to the fore largely in association with exacerbations of depression. In essence, your depressive disorder remains in remission while you continue to take your medication.You need ongoing psychiatric care and counselling. Your prospects of rehabilitation remain positive, provided you maintain medication. There is, in my view, some risk of re-offending, even with medication. Your pursuit of paranoid ideation during the trial and submissions on penalty show you still represent a risk, although a low risk, to various politicians and members of the judiciary. Apart from one matter, the applicant did not indicate the basis of his objection to the judge’s use of Dr Raeside’s report. He did refer to s 269ZA of the CLCA. That section provides, amongst other things, that evidence of a finding made on an investigation into a defendant’s fitness to stand trial is not admissible against the defendant in criminal proceedings against that person. However, s 269ZA is of no application in the present circumstance. In the events which happened, the District Court did not conduct an investigation into the applicant’s fitness to stand trial presumably because, on receipt of Dr Raeside’s report, it decided that it was not necessary to do so. The District Court has not made any finding on an investigation into the applicant’s fitness to stand trial to which s 269ZA can apply.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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