R v Paikos

Case [2004] SASC 314

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v PAIKOS

Judgment of The Court of Criminal Appeal

(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)

1 October 2004

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 - WHEN GRANTED

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE

Appeal against sentence - appellant pleaded guilty in the District Court to aggravated serious criminal trespass, assault occasioning actual bodily harm and damaging property - offending occurred after the appellant was told his fiancee had been in a relationship with the victim of the assault -  appellant sentenced to a term of imprisonment of 2 years and 8 months with non parole period of 12 months - sentence appealed on the grounds that the sentence imposed was manifestly excessive, the sentencing judge erred in not having sufficient regard to relevant subjective considerations and the sentencing judge sentenced the appellant under a misunderstanding of fact - application to tender additional affidavit evidence - whether additional affidavit evidence should be considered on appeal - consideration of circumstances of offending - consideration of appellant's state of mind at time of offence -  consideration of emotional distress as a mitigating factor in sentencing. 

Held sentencing judge had regard to a mistaken fact when sentencing - appeal allowed, sentence imposed by the District Court set aside - appellant re-sentenced - discussion of the court's discretion to exercise a merciful approach to sentencing - appellant sentenced to 18 months imprisonment with a non parole period of 4 months.

Criminal Law Consolidation Act 1935 (SA) s 18A, s 40, s 85, s 170, s 359, referred to.
R v C [2004] SASC 244; CDJ v VAJ (1998) 197 CLR 172; Van Den Heuvel v Tucket (2003) 85 SASR 512; R v Neal (1982) CLR 305, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"emotional distress"

R v PAIKOS
[2004] SASC 314

Court of Criminal Appeal:  Perry, Nyland and Gray JJ

  1. PERRY J.             I am grateful for having had an opportunity to peruse the reasons published by Gray J, who has set out the circumstances of the offending, the personal background of the appellant, and other matters relevant to the appeal.

  2. I regret that I am unable to agree with him as to the outcome. I would not be disposed to allow the appeal.

  3. I will give my reasons.

    The Affidavit Evidence

  4. Whether or not it is proper to receive the affidavit of the appellant referred to in the reasons of Gray J, depends to some extent upon the course of the proceedings before the sentencing judge.

  5. The appellant was represented on the occasion…

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AGLC
R v Paikos [2004] SASC 314
Case
[2004] SASC 314
Decision Date

CaseChat Overview and Summary

The appeal in R v Paikos was brought by the appellant, who had been convicted in the District Court of South Australia of aggravated serious criminal trespass, assault occasioning actual bodily harm, and damaging property. The appellant attacked the victim, believing him to be in an ongoing relationship with his fiancée, a belief prompted by information provided by the victim’s brother. The appellant was sentenced to two years and eight months imprisonment, with a non-parole period of 12 months. The appellant appealed the sentence on the grounds that it was manifestly excessive, the sentencing judge failed to consider relevant mitigating factors, and the sentencing judge was operating under a misunderstanding of fact.

The court identified that the sentencing judge had misunderstood the nature of the relationship between the appellant’s fiancée and the victim. The sentencing judge was under the impression that the relationship had ended three years prior to the assault, whereas the appellant believed it to be ongoing at the time of the attack. This misunderstanding influenced the severity of the sentence imposed. Additionally, the court found that the sentencing judge did not adequately consider the appellant’s emotional distress and lack of prior criminal history as mitigating factors. The court also noted that the appellant showed remorse and had good prospects for rehabilitation, which were not sufficiently weighed by the sentencing judge.

Given the misunderstanding of fact and the inadequate consideration of mitigating factors, the court allowed the appeal and set aside the sentence imposed by the District Court. The appellant was re-sentenced to 18 months imprisonment with a non-parole period of 4 months. The court emphasized the importance of considering the appellant’s emotional state and lack of prior criminal history in determining an appropriate sentence. The court exercised its discretion to adopt a more merciful approach, reflecting the mitigating circumstances of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

As earlier observed, the appellant believed his fiancée to be engaged in an ongoing affair with the victim and that the two had been out dancing together on the previous weekend. The incident, although serious, can be explained by the appellant’s state of mind and emotional distress. In such circumstances, it seems unlikely that further offending would occur.Personal Background The appellant was born in Greece and came to Australia with his parents at the age of one. He has four siblings and the family remains ‘close knit’. He was educated at Brompton Primary School and Adelaide High School. He completed year 12. He then undertook an associate diploma in accounting at Adelaide TAFE. At the time of the offending, the appellant was undertaking a commerce degree at the University of South Australia. Prior to his imprisonment the appellant had been in continuous employment. Since the age of 21 the appellant has obtained employment in the accounting field. At the time of the offending the appellant was 30 years old and working in an accountancy firm, undertaking primarily tax accounting. He was also a member a soccer club and was the club treasurer. Material before the court suggested that the appellant was industrious, of good character and of high standing in the community both in business and sport. The appellant has no relevant history of prior offending.The Sentence Imposed The sentencing judge considered the three offences to form part of the one incident and proceeded to impose a single sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). Regard was had to the appellant’s personal background. In particular, the judge considered his positive work history, successful sporting history and good standing in the community. The judge arrived at a provisional sentence of three years and six months imprisonment. A discount of 10 months was made having regard to the early plea of guilty. The resultant sentence was for two years and eight months. As earlier observed a non parole period of 12 months was fixed. The sentencing judge declined to suspend the sentence on the basis that the gravity of the offending required an immediate custodial term to be imposed. The sentencing judge described the offending as ‘brutal’ and ‘vicious and unprovoked’ and observed:in the end, it is the aggravated nature of your conduct which persuades me that your sentence would not be suspended.Issues on Appeal Counsel for the appellant submitted that the sentence imposed was manifestly excessive and that the sentencing judged erred in not having sufficient regard to relevant subjective considerations. Such considerations included the appellant’s remorse and contrition, lack of relevant antecedents, previous good character and standing in the community, lack of any previous tendency towards violence and good prospects of rehabilitation. Counsel submitted that the sentencing judge erred in not suspending the term of imprisonment imposed. It was said that an immediate custodial sentence ought to have been considered as an option of last resort and in the present case there was good reason to suspend the term of imprisonment It was contended that when considering whether to exercise the discretion to suspend the term of imprisonment, the judge focused too heavily on the nature of the offending.

Evidence

Evidence Before The Court

I will give my reasons.The Affidavit Evidence Whether or not it is proper to receive the affidavit of the appellant referred to in the reasons of Gray J, depends to some extent upon the course of the proceedings before the sentencing judge. The appellant was represented on the occasion when submissions were made on his behalf to the sentencing judge, by Mr Longson of counsel. The transcript of part of his submissions and his exchanges with the sentencing judge reads as follows:“MR LONGSON: The facts of this unfortunate incident are, on the day of this offence Mr Paikos was in the company of his brother-in-law to be, who’s present in the body of the court. They were involved in some renovation work, they were driving around buying various bits and pieces. During the course of this, the brother-in-law to be has told Mr Paikos that his fiancée, the brother-in-law’s sister, had at some stage previously, and we’re talking a number of years ago, at least three years ago, had had some type of relationship with the victim in this matter, Mr Harris.This was the first Mr Paikos knew of this. He became, understandably, upset at being told this.HIS HONOUR: Why did he become understandably upset?MR LONGSON: He’s engaged to marry this lady. They’ve been in a relationship now for some close to 10 years, so at the time of this relationship with Mr Harris that the brother-in-law alluded to, it was during the course of the relationship with my client.HIS HONOUR: I see, go on.MR LONGSON: Not only did the brother-in-law tell him about this incident, he also provided Mr Paikos with the name and address of Mr Harris and it’s unfortunate that he did that. He acted clearly as an agent provocateur. What his motive was on the day of telling Mr Paikos this, given that it’s a matter of ancient history, I can’t speculate on, but nevertheless Mr Paikos was upset and drove to Mr Harris’s house.The incident has then occurred. We don’t take issue with anything that Mr Harris says in that declaration. It reflects what happened on the day, and following - your Honour will note during the declaration that Mr Paikos has at some stage during the assault asked Mr Harris about whether he had the relationship with my client’s fiancée, to which Mr Harris admitted.HIS HONOUR: He hit him before he asked him that, did he not?MR LONGSON: He did. I am about to address your Honour on that. It’s very clear that Mr Harris would have had no idea what was going on, who Mr Paikos was, why he was there or why Mr Harris was being assaulted, and the court’s sympathy will no doubt be excited for Mr Harris and consequently his mother, having heard her victim impact statement.The assault stopped. My client left the premises. As he left the premises, he removed the letterbox and threw it through the window, and he drove off.” (my emphasis) The appellant exercised his right to silence when interviewed by the police, so that there was no statement by the appellant before the sentencing judge which addressed the immediate circumstances of the assault and its preliminaries.

Decision

Reasons for decision

PERRY J
In R v Neal[8] Brennan J observed:It is erroneous to neglect consideration of emotional stress which explains criminal conduct; that factor is material to the assessment of proper retribution and it may be material to deterrence - at all events if those to be deterred are likely to be subjected to similar emotional stress.When considering the basis on which emotional stress is mitigatory Brennan J commented:[9]The facts of the present case likewise point to some "special problems" which may explain - though they cannot justify or excuse - Mr. Neal's conduct. The assault was not caused by any ill-feeling between Messrs. Collins and Neal personally. Yet a dramatic and emotional confrontation on Mr. Collins' steps had occurred, apparently produced by a deeply-felt objection to departmental control of the reserve. The fact that the incident was to be accounted for by the problems (whatever they are) of life on the reserve was a material factor for consideration.[8] (1982) 149 CLR 305 at 325[9] (1982) 149 CLR 305 at 324-325Conclusion In the present case, the gravity of the offending must be acknowledged. The appellant committed a violent, prolonged assault on the victim that resulted in physical and psychological harm. The assault took place while the appellant was a trespasser at the victim’s family home, a place the community expects persons to be able to reside safely and without fear of harm. However, the circumstances of this offending distinguish this case from an ordinary case of ‘home invasion’. This was not a random attack on a stranger but rather an assault motivated by a mistaken belief that the victim was currently involved in a personal relationship with the appellant’s fiancée. At the time of the incident, the appellant had recently received information from the brother of his fiancée that led to a belief that his fiancée was in an ongoing relationship with the victim. As a result the appellant was in a state of emotional turmoil and experienced a loss of control that led to the assault. In accordance with Neal, the appellant’s state of mind, in particular his emotional distress, was a material and mitigatory factor. The sentencing judge did not have regard to these matters due to a misunderstanding of fact. In the present case the offending occurred against a background of emotional distress and was out of character. The appellant acknowledges the gravity of his behaviour, is remorseful and has excellent prospects for rehabilitation. The sentence imposed by the single judge should be set aside and the appellant re-sentenced. The gravity of the offending, in particular the prolonged nature of the assault and the fact that it occurred in the victim’s home, calls for a sentence of imprisonment. In the circumstances, it is appropriate to start with a provisional sentence of two years imprisonment. A reduction of six months should be made having regard to the appellant’s early plea of guilty and expressions of contrition and remorse. This leads to the imposition of a head sentence of 18 months imprisonment. In light of the appellant’s prior good character, high standing in the community and prospects for rehabilitation a non parole period of six months should be fixed.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

Counsel for the respondent submitted that the sentence was not manifestly excessive given the serious circumstances of the offending. It was said that regard ought to be had to the violence associated with the forced entry, the prolonged serious assault which continued over a period of several minutes and included a threat to kill, the property damage caused to the front window and the terror experienced by the victim. It was said that the maximum penalty for aggravated serious criminal trespass was life imprisonment and five years imprisonment for assault occasioning actual bodily harm and two years imprisonment for occasioning property damage. It was contended that having regard to the gravity of the offending, the community’s concern regarding this type of ‘home invasion’ offence and the need for general and personal deterrence, the sentence imposed was appropriate.Consideration of Issues on AppealA Misunderstanding At the time of sentencing, counsel for the appellant was of the understanding that the relationship between the appellant’s fiancée and the victim occurred three years prior to the incident. In the course of submissions to the sentencing judge counsel said:The facts of this unfortunate incident are, on the day of this offence, Mr Paikos was in the company of his brother-in-law to be, who’s present in the body of the court. They were involved in some renovation work, they were driving around buying various bits and pieces. During the course of this, the brother-in-law to be has told Mr Paikos that his fiancée, the brother-in-law’s sister, had at some stage previously, and we’re talking a number of years ago, at least three years ago, had had some type of relationship with the victim in this matter, .. .…[The appellant’s] engaged to marry this lady. They’ve been in a relationship now for some close to 10 years, so at the time of this relationship with Mr Harris that the brother-in-law alluded to, it was during the course of the relationship with my client.…Not only did the brother-in-law tell him about this incident, he also provided Mr Paikos with the name and address of Mr Harris and it’s unfortunate that he did that. He acted clearly as an agent provocateur. What his motive was on the day of telling Mr Paikos this, given that it’s a matter of ancient history, I can’t speculate on, but nevertheless Mr Paikos was upset and drove to Mr Harris’s house. At the hearing of the application for leave to appeal, counsel for the appellant suggested that, contrary to what was said at the time of sentencing, the appellant had been told by his brother-in-law that the relationship between his fiancée and the victim was an ongoing affair. On the hearing of the appeal, counsel for the appellant applied to tender affidavit evidence supporting this assertion. The statements made by the victim and his recollection of the incident further supported this assertion. In a statement by the victim it was recounted that the appellant asked ‘Did you go dancing last week?’. This question is evidence of the appellant’s state of mind at the time of the incident. It is apparent that the appellant believed the relationship between the victim and his fiancée to be an ongoing affair. This is further supported by the statement of the victim that he had sent the appellant’s fiancée a Christmas card some 11 months prior to the incident. This belief is further supported by the affidavit tendered on the hearing of this appeal.