R v MAVROPOULOS - [2017] SASCFC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAVROPOULOS
[2017] SASCFC 160
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)
4 December 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence on the ground that it is manifestly excessive. In particular, that the sentence is so severe it falls outside the range of appropriate sentences given the circumstances of the offending and the personal circumstances of the offender.
The applicant pleaded guilty to one count of aggravated threatening to cause harm and one count of theft contrary to sections 19(2) and 134 of the Criminal Law Consolidation Act 1935 (SA), respectively. The sentencing judge imposed a single sentence for both offences. He utilised a starting point of four years and six months, and reduced it by 40% to two years, eight months and 12 days on account of the pleas of guilty. At the time of the offending the applicant was on parole for earlier offending committed in 2007. As such, the sentence was made cumulative on the unexpired sentence he was liable to serve as a result of the breach of parole. That resulted in an accumulated head sentence of six years, nine months and 20 days. A non-parole period of three years and eight months was imposed, which was backdated to the time at which the applicant was taken into custody.
Held (per Stanley J, Kourakis CJ and Parker J agreeing): Application for permission to appeal granted; appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 19(2), s 134; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Niesen [2015] SASCFC 165; R v Campbell; R v Fowler [2017] SASCFC 79; R v Wakefield (2015) SASR 569, considered.

R v MAVROPOULOS
[2017] SASCFC 160
Court of Criminal Appeal: Kourakis CJ, Stanley and Parker JJ
R v MAVROPOULOS
Court of Criminal Appeal: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ: I would grant permission to appeal but dismiss the appeal for the reasons given by Stanley J.
I would only add that the disposition of this matter by acceptance of pleas of guilty to aggravated threatening to cause harm and theft left the Judge to sentence on a problematic factual basis. The most obvious explanation for the victim allowing the applicant to take his cash on hand, and withdrawing more money from an ATM to give up to him, was that the victim was overborne by the applicant’s threats. However, the Judge could not sentence the applicant for an offence of robbery of which he had not been convicted. The Judge could only sentence for simple theft and a threat made in the course of an argument.
Nonetheless the theft was more serious than most thefts because the applicant brazenly took the money from the victim on two occasions knowing that the victim would be too frightened to attempt to recover it from him. The offence of threaten harm was also more serious, than the words of the threat alone, because its purpose was to terrorise the victim for having co-operated in the prosecution of the applicant. Finally because the factual basis of the pleas severed any connection between the threat and the theft, there was good reason to make the sentences for each discrete offence cumulative, at least in part.
STANLEY J.
Introduction
This is an application for permission to appeal against sentence. The applicant pleaded guilty to one count of aggravated threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of theft contrary to s 134. The sentencing judge utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) and imposed one sentence for both offences. He used a starting point of four years and six months before discounting the sentence by 40 per cent for the applicant’s pleas of guilty. That reduced the sentence to two years, eight months and 12 days. At the time of the commission of these offences the applicant was on parole for earlier offending committed in December 2007. The judge was obliged to make the s 18A sentence cumulative on the unexpired sentence the applicant was liable to serve as a result of the breach of his parole.[1] That resulted in an accumulated head sentence of six years, nine months and 20 days. The judge fixed a non-parole period of three years and eight months and the sentence and non-parole period were backdated to commence on 31 October 2015, being the date on which the applicant was taken into custody.
[1] Section 31(2) of the Criminal Law (Sentencing) Act 1988 (SA). See R v Gauci [2017] SASCFC?
Ground of appeal
The sole ground of appeal is that the sentence is manifestly excessive. A Judge of this Court refused permission to appeal on that basis on 25 September 2017. The applicant now seeks to propound that ground on the following basis:
1. the starting point of four years and six months was manifestly excessive;
2. the head sentence was manifestly excessive; and
3.the non-parole period was manifestly excessive, but only because the head sentence is too high.
The applicant submits that the sentence imposed is so severe it falls outside the range of appropriate sentences given the circumstances of the offending and the circumstances of the offender.
Approach on appeal
The approach from the appeal court when considering an appeal against sentence is explained by the High Court in Markarian v The Queen.[2] Gleeson CJ, Gummow, Hayne and Callinan JJ said:[3]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess” …
[Citation omitted.]
[2] [2005] HCA 25, (2005) 228 CLR 357.
[3] [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370-371.
Manifest excess
In The Queen v Morse[4] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[5]
[4] (1979) 23 SASR 98.
[5] (1979) 23 SASR 98 at 99.
To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge. In Hili v The Queen[6] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[7]
… appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[Citations omitted.]
[6] [2010] HCA 45, (2010) 242 CLR 520.
[7] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538 – 539.
More recently in R v Niesen[8] this Court observed:[9]
Whether a sentence is manifestly excessive is not to be determined by comparison with sentences in particular cases. It is an erroneous approach to look to sentences passed in other cases as indicating a range of appropriate sentencing for particular offences and place this particular offending somewhere in that range. Accordingly, the appellant’s submission based on comparison with the sentences imposed in the cases of Violi, O’Toole, Willingham and Nozuhur, does not assist. Rather the Court undertakes the evaluative task of determining whether the sentence imposed exceeds the available range for this particular offending by reference to the factors identified by King CJ in Morse referred to above. ...
[8] [2015] SASCFC 165.
[9] [2015] SASCFC 165 at [60].
In considering whether a sentence is manifestly excessive it is appropriate to consider the notional head sentence fixed by the sentencing judge before the application of the statutory discount for a plea of guilty.[10] To approach consideration of whether a sentence is manifestly excessive without regard to the application of the statutory discount would deprive the offender who enters the plea of part of the value of the incentive that the Parliament intended to confer for the plea, at least in the context of the exercise by the offender of an appeal against sentence on the ground of manifest excess, and would distort the application of the test of manifest excess. Generally, a sentence will be manifestly excessive if the notional starting point for fixing a sentence for imprisonment is beyond the range of sentences applicable to that offending.
[10] R v Weatherill [2015] SASCFC 113 at [6]; R v Campbell; R v Fowler [2017] SASCFC 79 at [51].
Circumstances of the offending
On 29 October 2015 the applicant was on parole. He had been granted parole four months earlier after serving seven years, seven months and 11 days imprisonment for the offences of aggravated serious criminal trespass in a place of residence and aggravated causing harm with intent to cause harm which had been committed on 7 December 2007.
The circumstances of the October 2015 offending are that the applicant attended the victim’s home where he told the victim he had “done eight years” and that the victim should pay for it. When the victim denied his involvement, the applicant pulled a pair of knuckledusters from his jeans and told the victim to “shut up” and that he would “beat the fuck out of him”.
The applicant took $450 from the victim’s wallet and directed the victim to withdraw more cash from a nearby ATM. He waited while he did this. The victim withdrew another $140, which the applicant took from him upon his return.
The sentencing judge considered it “plain that [the applicant] believed that [the victim] had played some part in [the applicant’s] arrest” in relation to the 2007 offending. That offending involved the applicant forcing his entry into a residence in the company of two others in order to take cannabis plants being grown at the premises. He was armed with a firearm and, when confronted by the occupant, discharged the firearm, hitting the occupant in the upper leg. The victim of the October 2015 offending drove the occupant to hospital. The victim provided a statement to police, although he was not called as a witness at the trial.
For the 2007 offending the applicant was sentenced by a Judge of this Court to imprisonment for 12 years, with a non-parole period of seven years, backdated to commence on 7 December 2007. As the sentencing judge observed, the 2015 offending was inextricably linked to the 2007 offending.
Personal circumstances of the offender
The applicant is now 41 years of age. He is in a steady relationship with a partner who is supportive. He has three biological children each under the age of 15, and one stepson with whom he shares a close relationship.
As the sentencing judge acknowledged, his antecedent report is “illuminating”; until 27 years of age the applicant had no offending history and, until 2007, had committed no offences of violence. The judge briefly outlined the offences of violence as follows:
Your first offence of violence was the shooting offence in 2007, to which I have referred. There was another less serious offence of violence, being aggravated assault causing harm in July of 2008, for which you received a sentence of five months imprisonment, which was suspended upon you being of good behaviour.
The judge then referred to the number of testimonials tendered in the applicant’s favour. He said:
I refer to the various testimonials which were tendered. There are a number of people in court today, and I assume some of them were authors of those testimonials.
The manager of Russo Produce had employed you previously as a warehouse supervisor. He regarded, and still regards you highly. He has said that upon your release from prison, he would continue to provide employment to you… [Your partner] has visited you in custody and undertaken to support and assist you upon your return into the community. Mr [G] spoke of your assistance to him following the death of his brother in a car accident. He also indicated he will support you upon your release from custody, as did your cousin… She wrote about your kindness to the family generally.
Evident from those testimonials is the strong support network surrounding the applicant, comprised of family, friends and colleagues.
Little further was put to the Judge in respect of the applicant’s personal circumstances. No reports were tendered. However, during submissions, counsel for the applicant submitted that his prior offending history was primarily attributable to his methamphetamine use and that methamphetamine was not a trigger in relation to the October 2015 offending. As such, his rehabilitation prospects were promising.
The applicant’s counsel also alluded to the broader context of the offending. In particular, that the victim allegedly had been supplying methamphetamine to the applicant’s younger brother, contributing to the applicant’s distaste for the victim. However, counsel quite rightly submitted that did not provide an excuse for the applicant’s offending.
The judge’s approach to sentencing
In imposing sentence the judge said that in consequence of the guilty pleas entered by the applicant he was entitled to a discount of up to 40 per cent for the offence of aggravated threatening to cause harm, but only 10 per cent for the theft offence. He further said:
I will however employ s 18A of the Sentencing Act to impose one sentence for both offences, in accordance with the decision of the Court of Criminal Appeal in the case of R v Wakefield, I will treat the offence of aggravated threaten to cause harm as the more serious and therefore the principal offence. Had I imposed separate sentences, they would have been fully concurrent. You are not to be sentenced for the previous offences but you do not get the benefit given to a first offender.
General deterrence is an important factor in respect of crimes of violence. In your case, personal deterrence is also important because your offending occurred during your release on parole.
I appreciate that you did not inflict any physical harm upon the victim, but it is still a serious example of this type of offence.
The judge then announced the head sentence he was imposing and turned to the fixing of the non-parole period. He said:
It is necessary for me to fix a non-parole period in respect of that accumulated period. Your counsel submitted that in fixing a non-parole period I ought to give weight to what he submitted was your good prospects for rehabilitation and the fact you have a close group of friends and family prepared to assist you.
The difficulty is, that when you were sentenced by Anderson J in 2009 his Honour did believe that you had good prospects of rehabilitation and would use your time in custody for good use. For obvious reasons I am concerned about the prospects of rehabilitation. You have spent a great deal of time in custody. The fact is you have now spent about, or over 9 years in custody, really because of one event in 2007.
On this matter you have already spent 21 months in custody and you have weaned yourself from drugs. I accept that the 2007 offending was an isolated event. The subject event is inextricably entwined with it. You have not engaged in violence against others.
Maximum penalty
The maximum penalty for the offence of aggravated threatening to cause harm is imprisonment for seven years and the maximum penalty for the basic offence of theft is 10 years.
Consideration
Critical to the application for permission to appeal is the submission that the starting point in calculating the head sentence fixed pursuant to s 18A of the Sentencing Act, namely, four years and six months, is outside the range of permissible sentences given the circumstances of the offending and the circumstances of the offender.
For the reasons set out above, in considering whether a sentence is manifestly excessive, it is appropriate to consider the notional head sentence fixed by the sentencing judge before the application of the statutory discount for a plea of guilty.
In this case the sentencing judge indicated that had he imposed separate sentences they would have been fully concurrent, and treated the offence of aggravated threatening to cause harm as the more serious offence. It follows that the judge commenced with a notional head sentence for the offence of aggravated threatening to cause harm of four and a half years. While this is a substantial sentence, for the reasons that follow I do not consider it is outside the permissible range for this offending and this offender. That involves a consideration of the offending and the offender.
This was a serious example of the offence of aggravated threatening to cause harm. The offence was premeditated. The applicant went to the victim’s home armed with knuckledusters. The threat was made in conjunction with the applicant brandishing this weapon. There is a further feature of the commission of this offence that increases the gravity of the offending. The threat was made in the context of the victim’s involvement in the applicant being prosecuted for his previous criminal conduct. That this had occurred some eight years earlier added to the seriousness of the offending. In imposing sentence, the courts must exercise particular care to protect the integrity of the system of criminal justice. Not only is it vital to the integrity of the criminal justice system that persons in the community can feel confident in cooperating in investigations and prosecutions without threat of retaliation, it is at least of equal importance that they should not be left fearful of retaliation over a lengthy period of time, in this case, extending for years.
A further concerning feature of the applicant’s offending was that he had committed the offences when he had been on parole for only four months after a lengthy term of imprisonment. While it was submitted on his behalf that the Court should have sentenced on the basis that he had favourable prospects for rehabilitation given he had broken his addiction to methylamphetamine, the fact that he was prepared to engage in this criminal conduct while not under the influence of drugs and while on parole, demonstrated that his prospects of rehabilitation are less than promising.

These factors called for the imposition of a sentence that served the needs of specific and general deterrence.
The applicant sought to rely on a small number of cases to provide a comparison from which the Court could infer that the sentence imposed was outside the permissible range.[11] For my part I did not find those cases helpful and the authorities repeatedly caution against reliance on such comparators.[12] That is particularly so where the survey is so limited.
[11] R v Hronopoulos [2017] SASCFC 143; R v Bridgland [2016] SASCFC 28, (2016) 258 A Crim R 149; R v Carr [2008] SASC 125, (2008) 101 SASR 13; R v Bryden [2006] SASC 203.
[12] R v Niesen [2015] SASCFC 165 at [60].
Further, there is an aspect to the approach to fixing sentence in this matter which invites reflection given the ground of appeal.
First, the sentencing judge utilised s 18A to impose a single sentence when two sentences could otherwise have been imposed concurrently. This avoided the obligation to identify in his sentencing remarks the notional sentences and discounts for the guilty pleas in accordance with s 10C of the Sentencing Act.[13] Where there are different maximum sentences applicable and different maximum discounts apply pursuant to s 10C to each offence for which a person is to be sentenced, in sentencing pursuant to s 18A a judge is obliged to explain how he arrived at the single sentence imposed after application of the differential discounts. This requires identification of the notional starting head sentences for the individual sentences and the notional discounts applied.[14] The applicant was entitled to a discount for his plea of guilty in relation to the theft offence of up to 10 per cent. In fact, the judge applied a discount of 40 per cent to the single sentence imposed pursuant to s 18A.
[13] R v Wakefield [2015] SASCFC 10 at [38]-[39], (2015) 121 SASR 569 at 580.
[14] R v Wakefield [2015] SASCFC 10 at [38]-[39], (2015) 121 SASR 569 at 580.
Second, the sentence reached was informed by the judge’s view that if he had not been utilising s 18A he would have made the sentences wholly concurrent. If he had imposed separate sentences I consider it would have been an error to have made the sentences wholly concurrent. While the offending substantially arose out of the one incident, it involved separate incursions into criminal conduct. That might have justified some degree of concurrency but not making the sentences wholly concurrent. As a result, the judge did not give appropriate weight to the theft offence in fixing sentence.
While the amount of money the subject of the theft offence was not great, the background circumstances mean that this was a more serious example of this offence than shoplifting, pick-pocketing or taking unattended cash from a shop or workplace. I am satisfied that this called for a sentence of imprisonment, albeit at the lower end of the scale, where the maximum penalty is 10 years imprisonment.
These aspects of the approach taken by the sentencing judge favoured the applicant.
For the reasons set out above, there is nothing in the personal circumstances of the applicant which would in any way incline a sentencing judge to exercise leniency.
In these circumstances, intervention by this Court in setting aside the sentence and resentencing would merely involve tinkering.
As I would not interfere with the head sentence there is no basis to interfere with the non-parole period.
Conclusion
For these reasons, while I would grant the application for permission to appeal, as I consider the ground was arguable, for the reasons set out above I would dismiss the appeal.
PARKER J: I agree that the appeal should be dismissed for the reasons given by Stanley J.