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…

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 MAVROPOULOS

Details

AGLC: R v Mavropoulos [2017] SASCFC 160
Case: [2017] SASCFC 160
Decision Date: 4 December 2017

CaseChat Overview and Summary

The applicant, R, sought leave to appeal against a sentence imposed by the sentencing judge. The dispute concerned the severity of the sentence, specifically whether the notional head sentence for aggravated threatening to cause harm was outside the permissible range. The matter was heard by Kourakis CJ, Stanley J, and Parker J.

The primary legal issue before the court was whether the sentencing judge erred in fixing a notional head sentence of four years and six months for the offence of aggravated threatening to cause harm, before applying a discount for a guilty plea. This involved determining if this starting point was manifestly excessive given the circumstances of the offending and the offender, and whether the court should consider the notional head sentence when assessing the overall fairness of the sentence.

The court reasoned that when considering whether a sentence is manifestly excessive, it is appropriate to examine the notional head sentence determined by the sentencing judge prior to any statutory discounts. In this instance, the sentencing judge treated the aggravated threatening to cause harm as the more serious offence, commencing with a notional head sentence of four and a half years. The court found this sentence, while substantial, to be within the permissible range. This conclusion was based on the gravity of the offending, which was described as a serious and premeditated example of aggravated threatening to cause harm. The applicant had attended the victim's home armed with knuckledusters and brandished the weapon while making the threat. The court also noted the seriousness of the threat being made in the context of the victim's involvement in the applicant's prosecution for prior criminal conduct, which had occurred eight years earlier. Furthermore, the court highlighted the importance of protecting the integrity of the criminal justice system by ensuring that individuals cooperating with investigations are not subjected to retaliation, even over extended periods. The applicant's commission of the offence while on parole, only four months after serving a lengthy prison term, also diminished his prospects of rehabilitation, despite submissions regarding his successful cessation of methylamphetamine addiction.

Consequently, the court granted permission to appeal on the basis that the ground was arguable, but ultimately dismissed the appeal, finding no error in the head sentence or the non-parole period. Parker J concurred with this decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STANLEY J

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.

Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

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.