R v Paikos - [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

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.
I regret that I am unable to agree with him as to the outcome. I would not be disposed to allow the appeal.
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.
Neither was there any statement in the material before the sentencing judge from the person described as the appellant’s “brother-in-law to be”, who, by reason of what he told the appellant, was clearly the instigator of the incident.
The sentencing judge did have, of course, a statement by the victim, Mr Harris. After explaining that following a knock on his front door, he opened it to be confronted by a person who turned out to be the appellant, Mr Harris said in his statement:
“He [the appellant] said, ‘Is your name Neville?’
I said, ‘Yep. What’s up?’
He then, with an open hand, I think it was the right hand, hit me in the face up at my nose. I staggered back, I was in shock. I only took a few steps back when he rushed in and grabbed my head and he slammed the right side of my head against the wall.
He said, ‘Did you go dancing last week?’
I said, ‘Yeah. What is going on? You must have the wrong person.’
I kept backing away.
He said, ‘You are seeing my girlfriend?’
I said, ‘No. I’m not seeing anyone.’
There was an assault at the Governor Hindmarsh, Port Road, HINDMARSH a few weeks ago at a ‘Salsa’ dance but I wasn’t there. I left at 12.00 am. I wondered did this have anything to do with that. He must have the wrong guy.”
Mr Harris then goes on to describe how he was pursued into the back yard by the appellant, where he was slammed into the Colourbond fence, following which the appellant grabbed his head and kneed him in the face.
At that stage, Mr Harris said, “Stop. What are you doing?”, whereupon the appellant hit him in the face again and said, “You went out with my girlfriend. Do you remember this name [suppressed]? Do you remember that name?”, whereupon Mr Harris said that he had not seen her for years. He says that he kept saying that.
But notwithstanding his repeated denial of having not seen her for years, the appellant pursued him into the laundry, where, according to Mr Harris, the following exchange and further assaults took place:
“He said, ‘Did you fuck her? Tell me the truth. I’m going to kill you anyway, so did you?’
I said, ‘I haven’t seen her for years, 2 or 5 years [suppressed].’
He was very controlling during this whole event. But he was screaming at me in the laundry.
He said, ‘Get up. Get up.’
I saw all the blood on the wall. I don’t know if he hit me while I was on the floor. I was all blurry by this time. I was too scared to get up. I didn’t want to be hit again. He kept saying, ‘Did you fuck her? Did you? You have ruined my life.’
He said, ‘Go and clean the blood off yourself.’”
Later in his statement Mr Harris said:
“The male that assaulted me was a man I saw from a distance at a dance studio about 3 (three) years ago [suppressed]. She was going out with him then. I didn’t see him up close but it looked like him.”
While it is true that the expression which Mr Harris attributes to the appellant, “Did you go dancing last week?” and the further statement attributed to him, “You are seeing my girlfriend”, might convey the impression that the appellant was of the view that there was some current relationship between Mr Harris and the appellant’s fiancée, the later statement by the appellant, “You went out with my girlfriend. Do you remember this name [suppressed]? Do you remember that name?”, speaks less clearly of a state of mind in which the appellant might have believed that there was a current relationship.
Be that as it may, given the clear and unequivocal submissions made by Mr Longson to the effect that the appellant’s fiancée’s brother had spoken of a relationship which had existed “a number of years ago, at least three years ago”, the magistrate was perfectly entitled to accept the submissions put by the appellant’s counsel, and to find in his sentencing remarks that the information given by the appellant’s fiancée’s brother was to the effect that his sister had “some three years before, had a relationship with the victim”.
It follows that it cannot be demonstrated in this case that the sentencing judge erred on the material which was before him.
There is no doubt that, ordinarily, on an appeal against sentence, this Court is concerned only to address the question whether the sentencing judge erred, having regard to the material which was before him or her.
Furthermore, the exercise of the power of the court to receive fresh evidence in the context of appeals against sentence, is heavily circumscribed.
In a recent decision of the Court in R v C,[1] the court conducted an exhaustive review of the authorities bearing on that question.
[1] Unreported [2004] SASC 244, 20 August 2004, Court of Criminal Appeal.
In the course of his judgment, with which White J agreed, Doyle CJ makes the following observations:
“The power of the court to receive evidence in an appeal against sentence, such evidence often being called fresh evidence, and the approach to the exercise of the power, are also subject to a well-settled rule of practice. In R v Smith (1987) 44 SASR 587 King CJ said at 588-589:
‘The task of the Court of Criminal Appeal, speaking generally, is to see whether the trial judge went wrong on the material before him: R v Dorning (1981) 27 SASR 481 at 488. There is power to receive fresh evidence subject to certain conditions which are summarised in Dorning’s case at 485. The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O’Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.’”
In his affidavit, which he sought to tender at the hearing of the appeal, the appellant states, inter alia, the following:
“4.I informed my lawyer of facts which were not raised by him in submissions, they being:
1.     Helped up Mr Harris at the end and passed a towel from the laundry.
2.     Never threatened to kill him.
3.     Didn’t throw him on the fence as stated.
4.     My future brother-in-law never mentioned the time factor. I was under the impression that it was current by the way he had said it. This was obvious by the questions I asked Mr Harris when assaulting him. I only became aware during the course of the incident, after Mr Harris informed me as to how long previous it was that, I ceased assaulting him.
5.I was informed that I could have a disputed fact hearing in respect to the matter but it may well be counterproductive.
6.My clear instructions were not to dispute what Mr Harris said as to what had happened and occurred.”
As to paragraph 5 of the affidavit, the appellant does not identify specifically matters upon which he might have sought a disputed fact hearing. Presumably they were, or at least included, points 1, 2 and 3 of paragraph 4.
We were informed on the hearing of the appeal by Mr Caldicott, who appeared for the appellant, that he did not rely on those points. He said that he only wished to rely on point 4, which he wished to use in support of his proposition that the sentencing judge had proceeded on a misapprehension as to the state of mind of his client at the time of the assault.
In considering whether it would be proper to receive the affidavit on the basis contended for by counsel, this is a case where the distinction between “fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence” is of little assistance.
What the complaint boils down to in this case, as the appellant contends, is that the submissions clearly made by counsel to the sentencing judge did not reflect the appellant’s instructions, and were apt to mislead the sentencing judge as to a factual matter (the appellant’s state of mind at the relevant time) relevant to sentence.
The ordinary rule is that a party is bound by the conduct of a case by their legal representative.
When the point was raised on the hearing of the appeal, Mr Caldicott said that it was not a case of counsel acting contrary to instructions but “that there was confusion with the instructions”. When Mr Caldicott was then asked by the Court why there was no affidavit forthcoming from counsel, Mr Caldicott said:
“Mr Longson was quite clear that, in any discussions with him, his instructions reflected what he had submitted.”
So that this is a case where counsel is clearly of the view that he put submissions which reflected the instructions which he had been given.
I note also that no affidavit has been proffered from the appellant’s brother-in-law deposing to what passed between them.
Furthermore, both the appellant and his brother-in-law were present in court when Mr Longson made his submissions to the sentencing judge. Apparently, neither of them attempted to correct the impression which Mr Longson had given.
In these circumstances, I have very considerable difficulty in accepting that it would be proper to receive the affidavit as evidence of the truth of what the appellant now asserts in the affidavit to have been his state of mind at the relevant time.
At the same time, I acknowledge that there may be cases where there has been a genuine misapprehension by counsel of the nature of his or her instructions, in circumstances in which it might be proper for an appeal court entertaining an appeal against sentence to admit an affidavit correcting a misapprehension into which the sentencing judge may have been led.
But the Court must be astute in such circumstances to ensure that the appellant is not attempting to have a second bite at the cherry. Ordinarily, such a course would only be permitted where there is evidence independent of the appellant which establishes with a reasonable degree of certainty what is said to be the true position.
In this case, there is some evidence in the statement by the victim Mr Harris which might lend some support to what is now being suggested by the appellant.
But even if the affidavit was to be admitted, and the self-serving account now given by the appellant of his state of mind at the relevant time was to be accepted, in the circumstances of this case I do not think that it would make any difference to the appropriate sentence.
The appellant says in his affidavit that he instructed his counsel “not to dispute what Mr Harris said as to what had happened and occurred”.
It is clear from Mr Harris’s statement that the appellant commenced a violent assault upon him before he had given Mr Harris the opportunity of confirming what the appellant says he had been told. He hit Mr Harris on the face, grabbed his head and slammed the right side of his head against the wall, before asking him any questions other than to confirm his identity.
Furthermore, after the victim had said, apparently again and again, that he had not seen the appellant’s fiancée “for years”, the appellant nonetheless continued to assault him, threatening to kill him.
It appears from Mr Harris’s account of what the appellant was saying at that stage of the assault, that the appellant may well have been more concerned to know whether Mr Harris had had intercourse with his fiancée, rather than how long ago it might have been. Mr Harris says that after he had told the appellant plainly that it had been some years since he had seen the appellant’s fiancée, the appellant kept saying, “Did you fuck her? Did you? You have ruined my life”.
Of course, some allowance must be made for the fact that the appellant was emotionally disturbed at the time of the assaults. But I note part of the statement by Mr Harris, “He was so calm while hitting me. He was almost playing with me”.
In my view, looking at the circumstances overall and bearing in mind the objective seriousness of the assaults, it would not make any significant difference to the sentence whether or not the appellant thought, at the stage when the assault commenced, that the association between Mr Harris and his fiancée was recent or had occurred some years before. In any event, contrary to what the appellant states in his affidavit, the assault continued after Mr Harris had made the position clear.
Because I am of the view that the matters deposed to in the affidavit by the appellant could not have any significant effect on the sentence which ought to be imposed, I would not admit it into evidence.
There is no other basis upon which the appeal could be allowed.
Mr Caldicott did not attempt to deny the objective seriousness of the assault.
Not only was Mr Harris admitted to hospital with quite significant injuries, which have had an ongoing effect upon his life, but the victim impact statement furnished by his mother must also be taken into account.
She was 73 years of age. On receiving a telephone call to do so, she came to Mr Harris’s house. She found him lying on the floor, and her description is that “there was blood everywhere … and his head and face was covered in blood”.
She says that she almost collapsed, and that ever since she has had nightmares and is frightened to answer the telephone “in case something else will happen”. Her sleep is disturbed and she is being treated by a doctor for depression.
It is true that the appellant must be given credit for his previous good character. But there is a limit to the degree to which allowance may be made for that, given the violent nature of the attack.
The maximum penalty for aggravated serious criminal trespass, is life imprisonment.

While the circumstances in which that offence may be committed may vary very greatly, this offence is in a serious category.
The sentence of 2 years and 8 months is, in my view, within the limits of a proper exercise of the sentencing discretion. The non-parole period of 12 months is modest and reflects whatever allowance should be made for the fact that the prospects of the appellant rehabilitating himself are favourable.
I would dismiss the appeal.
NYLAND J: In my opinion, the offence committed by the appellant was very serious whether or not there was a misunderstanding about the relationship between the victim and his fiancée. A sentence of imprisonment was therefore appropriate. Nevertheless, I agree with the conclusions reached by Gray J that there were circumstances which make it appropriate to allow the appeal. I agree with the sentence proposed by Gray J.
GRAY J
This is an appeal against sentence.
Pandelis Paikos, the appellant, pleaded guilty in the District Court to the offences of aggravated serious criminal trespass, assault occasioning actual bodily harm and damaging property.[2] The appellant was sentenced to a term of imprisonment of two years and eight months. A non parole period of 12 months was fixed.
[2] Pursuant to sections 170(2), 40 and 85 (3) of the Criminal Law Consolidation Act, 1935 respectively. The maximum penalty for these offences is life imprisonment; 5 years imprisonment and two years imprisonment respectively.
Circumstances of the Offending
At the time of the offending the appellant had been in a serious relationship with his fiancée for more than ten years. On the morning of the incident, the appellant had a conversation with his fiancée’s brother. As a result, the appellant was of the understanding that his fiancée had been involved in a relationship with the victim and that the two had been out dancing together on the previous weekend.
At 3.30pm on 29 November 2003 the appellant arrived at the victim’s home and knocked on the front door. The victim opened the door and saw the appellant standing on his front porch. The appellant asked the victim his name and when he replied he hit the victim across the face with an open hand. The appellant stepped into the house, grabbed the victim by the head and pushed his head into the wall. The appellant asked the victim ‘Did you go dancing last week?’. The victim replied ‘Yeah, what’s going on?’. The appellant then asked whether he was seeing his girlfriend. The victim replied ‘No. I am not seeing anyone.’
The victim turned to run out of the house into the rear yard. The appellant followed. Once in the rear yard, the appellant grabbed the victim and pushed him into a colour bond fence. He then grabbed the victim’s head and kneed him in the face. The appellant struck the victim again in the face before leaving the property. As the appellant left the property he removed the letterbox and threw it into the front window of the house, smashing the window.
As a result of the assault, the victim suffered a fractured nose, lacerations and bruising to his head, arms and back. Other than a scar caused by a laceration to the face, the victim’s physical injuries resulted in no permanent damage. However the victim continues to suffer some psychological consequence from the assault.
The appellant has expressed remorse and contrition for his offending behaviour. He regrets his actions and has a resumed a positive relationship with his fiancée. The two propose to marry upon the appellant’s release.
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.
Counsel further submitted that the appellant had been sentenced under a misunderstanding of fact. Recent affidavit evidence suggested that when the appellant attended the victim’s residence he understood that the relationship between the victim and his fiancée was an ongoing affair. It was contended that the appeal should be allowed and the appellant re-sentenced on the basis that he committed the offence whilst under considerable emotional stress - believing there was an ongoing relationship between the victim and his fiancée.
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 Appeal
A 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.
Counsel for the appellant submitted that it was apparent that the sentencing judge proceeded on a misunderstanding of fact. It was said that the judge sentenced on the basis that the appellant believed that the relationship between the victim and his fiancée had ceased some three years prior to the offending behaviour. It was contended that the material before the sentencing judge and the further material on appeal suggested that as a result of the information conveyed to him by his brother-in-law, the appellant was of the understanding that his fiancée had been in a relationship with the victim and that relationship was an ongoing affair.
Counsel for the respondent drew attention to the fact that regardless of the appellant’s understanding of the relationship, the evidence suggested that the relationship between the victim and the appellant’s fiancée had ceased some time prior to the offending behaviour. In a statement before the court, the victim said:
[Suppressed]. I sent her a Christmas card in December, 2002 to her mum’s address [suppressed]. I don’t know where she is living now. I don’t know where she works.
The Affidavit Evidence
As earlier observed, counsel for the appellant sought to tender an affidavit of the appellant dated 21 June 2004. The content of the affidavit included the following:
My future brother-in-law never mentioned the time factor. I was under the impression that it [the relationship between his fiancée and the victim] was current by the way he had said it. This was obvious by the questions I asked [the victim] when assaulting him. I only became aware during the course of the incident, after [the victim] informed me as to how long previous it was that, I ceased assaulting him.
…
I was of the belief when I went to see [the victim] that he had been seeing my girlfriend and it was ongoing. It is only when he said that he hadn’t seen her for 2 or 5 years that I realised that it had occurred some considerable time in the past. I later established that it was approximately 3 years prior to the incident.
Counsel for the respondent opposed the tender of the affidavit.
Section 359 of the Criminal Law Consolidation Act 1935 (SA) addresses the powers of the Court of Criminal Appeal when determining appeals:
For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice—
…
(c) receive the evidence, if tendered, of any witness (including the appellant)…
…
(f)exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; and
…
In R v C[3] Doyle CJ made the following observations with respect to section 359:
In the exercise of its powers under s 353(4), the court has power to admit evidence on the hearing of the appeal. The relevant powers are conferred by s 359 of the CLCA. Those provisions are set out in the reasons of Perry J. I will not repeat them. It suffices to say that they are to be applied in the light of the nature of the appellate processing in which the court is engaged.
[3] [2004] SASC 244 at [127] see also Perry J at [122]
In CDJ v VAJ[4] the High Court considered the approach to be taken to the reception of further evidence on appeal. The statutory power under consideration was in relevant similar terms to section 359 referred to above. McHugh, Gummow and Callinan JJ observed:[5]
One consideration in construing s 93A(2) [of the Family Law Act (Cth)] is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Another consideration is the effect of the principle that a provision conferring judicial power upon a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by the legislature. That is so whether the limitation derives from the common law principles governing the grant of new trials upon proof of fresh evidence or from some other source.
This approach was followed in an appeal in a civil matter in Van Den Heuvel v Tucker[6]. In R v C[7] Perry J addressed the operation of section 359(f):
However, s 359(f) of the Act enables the Full Court (sitting as the Court of Criminal Appeal) to exercise any other powers which may be exercised “by the Supreme Court on appeals or applications in civil matters”. Although the subsection does not refer specifically to the Full Court, I assume that what is being referred to are the powers of the Full Court in civil matters, rather than the powers exercised by the Supreme Court in hearing appeals other than those dealt with in the Full Court.
At all events, SCR r 95.15(b) provides that the Full Court, when hearing an appeal in a civil case, “may in its discretion receive further evidence upon any question of fact”.
[4] (1998) 197 CLR 172
[5] (1998) 197 CLR 172 at 201
[6] (2003) 85 SASR 512 at 537
[7] R v C [2004] SASC 244 at [137]-[138]
This Court has a discretion to receive further evidence when hearing an appeal. In the present case, that discretion should be exercised to receive the affidavit evidence. The content of the affidavit is supported by material adduced at the time of sentencing submissions. In particular, it is consistent with the statement of the victim that he was asked by the appellant whether he had been dancing with the appellant’s fiancée the previous week. These matters were material to the appellant’s state of mind at the time of the incident. Even if the affidavit was not received, the appellant’s state of mind at the time of the incident – his belief in the ongoing nature of the relationship – was adequately established by the material adduced during sentencing admissions.
Emotional Distress
As earlier observed, at the time of the offending the appellant believed his fiancée, of 10 years, to be involved in an ongoing relationship with the victim. After being told of this relationship by his future brother-in-law, he was in a state of rage. The appellant’s belief about the nature of relationship between the victim and his fiancée did not constitute an excuse for his criminal conduct, however, it is a relevant matter to be considered when assessing his criminal culpability.
Emotional distress at the time of committing an offence can be relevant when considering personal deterrence and retribution. Difficult personal circumstances or emotional stress may be an explanation for uncharacteristic conduct. Criminal conduct that can be explained, although not excused or justified by emotional stress, this may indicate a reduced need for a sentence to address personal deterrence.
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 324-325
Conclusion
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.
This appeal should be allowed. The sentence imposed by the District Court should be set aside. The appellant should be re-sentenced to a term of imprisonment of 18 months. A non parole period of six months should be fixed.