R v Parisi

R v PARISI
[2003] SASC 249
Court of Criminal Appeal: Debelle, Nyland and Gray JJ

DEBELLE J: I agree with the reasons of Nyland J and with the orders she proposes.
NYLAND J: This is an appeal against sentence. The appellant pleaded guilty in the District Court to two counts of damaging property, (s 85(3) of the Criminal Law Consolidation Act 1935), two counts of contravening a domestic violence restraining order, (s 15(1) of the Domestice Violence Act 1994), one count of threatening life, (s 19(1) of the Criminal Law Consolidation Act 1935) and one account of assault occasioning actual bodily harm, (s 15(1) of the Criminal Law Consolidation Act 1935). Upon the pleas being entered, a nolle prosequi was recorded with respect to a further count of contravening a domestic violence restraining order and a count of serious criminal trespass in a place of residence.
The District Court judge applied the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 and imposed one penalty for all of the offending. He indicated that he discounted the penalty by about 20% on account of the pleas of guilty, contrition and remorse. He then said that but for the pleas he would have imposed a sentence of four years imprisonment. Taking into account those factors, he ordered the appellant to be imprisoned for three years and two months. He imposed a non-parole period of 18 months. He indicated that time in custody had been taken into account.
The judge then considered whether the sentence should be suspended. He was conscious of the fact that immediate imprisonment was a course of last resort but in the exercise of his discretion considered this was not an appropriate case to suspend the sentence. He reached that view having regard to the fact that the offences included breaches of a domestic violence restraining order and the nature and the seriousness of the threaten life and assault charge. He also mentioned that the offences breached an interstate good behaviour bond.
The offending of the appellant occurred against the background of a marriage breakdown. The victim of each of the offences was the appellant’s estranged wife. They had been married for over 30 years and had five children. It appeared that for some time prior to the commission of these offences there had been problems in the marriage as a result of which the victim eventually obtained a domestic violence restraining order against the appellant on 11 October 2001.
The first group of offences committed by the appellant occurred on 24 November 2001. Notwithstanding the restraining order it appears that both the appellant and his wife maintained some contact and occasionally went out together. On this particular occasion, the appellant had convinced his wife to go out to dinner. An argument later ensued and his wife went home in a taxi. Later the appellant went to her house and demanded to be let in. She refused. The appellant subsequently caused damage to her car by scratching the paint and denting some panels. This behaviour constituted the first damage property charge. The car was parked outside his wife’s home address. As a result this incident breached the domestic violence restraining order which is the second count on the information.
The next offence occurred on 16 December 2001 when the appellant again caused damage to his wife’s car. (The judge in his sentencing remarks gave the date of this offence as 16 November 2001 but nothing turns on this.) On this occasion, the appellant again had an argument with his wife in the course of which he damaged the washers of the car. He also kicked the windscreen causing a crack.
The third group of offences occurred on 17 December 2001. On this occasion, the appellant’s wife was visiting a friend in Fitzroy. The appellant arrived at the house and wanted to enter. His wife’s friend would not let the appellant into the house and encouraged him to leave. The appellant refused to go and threatened to break in. The appellant threatened to kill his wife if he was not allowed in to the house. The appellant then produced a knife with a 15 cm blade and threatened to break into the house to kill his wife with it. The wife’s friend intervened and asked the appellant to hand over the knife. The appellant complied and was then allowed into the house on the basis that he would not harm his wife.
As soon as he entered the house the appellant searched for his wife whom he located in one of the bedrooms. Notwithstanding his earlier promise, the appellant grabbed her in a headlock and repeatedly punched her about the face and head, saying “I’m going to kill you, you bitch”. Others intervened to stop the assault and the appellant then fled. The victim suffered a broken nose and a black eye in the assault. She was taken by ambulance to hospital but was later discharged.
As part of the sentencing process, the appellant gave evidence. He claimed that he had not brought the knife with him to the house. He said he found it on the footpath when he arrived. Although the judge regarded the explanation as unsatisfactory he was not prepared to find beyond reasonable doubt that the appellant had gone to the house with the knife, which would otherwise have been a matter of aggravation.
In the course of submissions, a dispute arose as to the value of the property involved in the damage property charges. Each of those counts (1 and 3) related to damage to the victim’s motor vehicle. The victim initially claimed a sum of $6,127 for repairs for the damage with respect to Count 1 and a sum in excess of $3,000 with respect to Count 3. The information as originally framed with respect to each count therefore alleged damage amounting to more than $2,000 but not more than $25,000.
The appellant disputed the amount of damages claimed by his wife with respect to the car. He maintained they were excessive as the car was a 16 year old Mazda which had only cost about $900 when purchased. Eventually, the dispute as to value was resolved on the basis of an agreement that the cost of repairs to the car arising from both damage property offences was $1,500 although the appellant regarded even that amount as generous in light of the initial purchase price. As a result of the resolution of the dispute as to the quantum of damage, Count 3 was subsequently amended but no amendment was made with respect to Count 1.
The antecedent report of the appellant disclosed a number of prior convictions. They included a conviction in 1980 for possessing Indian hemp for dealing and trading for which the appellant received a sentence of 12 months imprisonment, suspended upon his entering into a bond to be of good behaviour for a period of two years. The appellant had two prior convictions for common assault in 1987 and 1992 respectively, each of which apparently arose from incidents with patrons at his restaurant. He received a moderate fine with respect to each of those offences.
On 14 August 2001 in New South Wales, the appellant was sentenced to two years imprisonment for the offence of supplying a prohibited drug. That sentence was suspended upon him entering into a bond to be of good behaviour for two years from the 14 August 2001. In the course of his sentencing remarks, the judge noted that the offences before him constituted a breach of that bond. He considered that the previous convictions were relevant to the appellant’s prospects of rehabilitation and any leniency that could be extended to him.
Dr Raeside, a psychiatrist, examined the appellant at the Remand Centre on 2 January 2002. In the course of providing his personal history, the appellant told Dr Raeside that he had “only hit [his wife] when she did something wrong”, like his father had done to him and said “we don’t hit to kill; we just hit to show it is wrong to do something. That’s the way we are born”. Dr Raeside concluded that the appellant had a generally unremarkable past psychiatric history, apart from the evolution of a depressive disorder in association with the ongoing deterioration of his relationship with his wife. He commented that the history suggested that the appellant had tended to act aggressively and violently at times both towards his wife and at least one of the children for many years.
The appellant was again examined by Dr Raeside on 21 January 2002, at which time Dr Raeside considered that the appellant continued to experience a major depressive disorder which was showing signs of responding to treatment with anti-depressant medication. He did not believe that the appellant’s condition had stabilised.
The judge was obviously concerned about the remarks made by the appellant to Dr Raeside. The judge accepted that despite the deterioration of the appellant’s relationship with his wife he had made genuine efforts to salvage it which were to no avail. He also took into account that the appellant had remained in custody for about six weeks before bail was granted by a judge of the Supreme Court. Bail was granted on conditions of home detention which included strict provisions as to electronic monitoring and very limited permission to leave the home for the purpose of working at the restaurant. The judge described the conditions as restrictive and was aware that they had remained in place for about 12 months. He indicated that he had regard to that form of bail when determining the appropriate penalty.
At the date of sentence, the appellant was aged about 57 years. He had, with other members of his family been involved with a well-known Italian restaurant for 25 years or more. The appellant came to Australia at the age of about 18 with his mother. He married when he was 21 years and his wife was about 18. Up until four years before this offending he had enjoyed a mostly good relationship with her. He continued to be on good terms with all but one of his children.
On appeal the appellant complained that the sentence was manifestly excessive in that the sentencing judge had failed to give adequate weight to the rehabilitation of the appellant and had given undue weight to the appellant’s prior unrelated offences and comments made by the appellant to Dr Raeside as to his matrimonial situation. The appellant also complained that the judge made an inadequate allowance for the restrictions imposed upon him when released on bail. The appellant therefore submitted that the judge had erred in the exercise of his discretion in not suspending the order for imprisonment.
The other matter raised on appeal relates to the basis upon which the judge sentenced the appellant with respect to the property damage offences. In the course of his remarks the judge indicated the maximum penalty for each of the offences committed by the appellant. He said that the maximum penalty for the property damage offences was five years on each count. This was, however, an error. The correct penalty with respect to the property damage charges as originally framed was in fact three years imprisonment. Following the resolution of the dispute at $1,500 with respect to both counts, the maximum applicable penalty for each count was two years imprisonment. As the judge imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, however, it is not possible to determine how the judge arrived at his ultimate conclusion as to penalty and in particular that part of the head sentence which relates to the property damage counts. In that circumstance it is necessary for this court to set aside the sentence imposed by the sentencing judge and exercise the sentencing discretion afresh.
The appellant’s conduct was extremely serious, consisting of three episodes of violent behaviour in a domestic situation. The two offences of property damage, looked at in isolation, might not in themselves appear to be particularly serious but in my opinion they must be treated as part of an escalating course of conduct by the appellant which culminated in the assault upon his wife on 17 December 2001. That assault caused her serious injury and must have been a terrifying experience for her. Domestic violence of any kind is to be abhorred. The fact that the appellant’s conduct took place in breach of a domestic violence restraining order is an aggravating factor. This means that general deterrence must play a significant part in the sentencing process to bring home to others who might be like-minded that the courts will not tolerate this type of behaviour. In my opinion, this can only be reflected adequately by the imposition of an immediate custodial penalty. This is not an appropriate case for suspension of sentence: R v McMutrie (2002) 83 SASR 261 [at 15-18].
As I consider the appellant’s offending to be one course of conduct, it is appropriate to apply the provisions of s 18A of the Sentencing Act and impose one sentence for all of the offending. In considering the appropriate sentence I would adopt a similar approach to that of the sentencing judge and allow a discount of about 20% to reflect the appellant’s pleas of guilty. I consider that the appellant should be given further credit for a period of about six months to allow for the six weeks imprisonment served by him prior to the date of sentence together with an allowance for the period subsequently spent on home detention bail. Taking all those matters into account, I would sentence the appellant to be imprisoned for a period of two years and nine months.
There remains the question of fixing a non-parole period. Dr Raeside commenced treating the appellant during the course of the bail proceedings. He provided a great number of reports concerning the appellant’s progress. Notwithstanding his earlier concerns, Dr Raeside expressed the opinion in his report of 20 June 2002 that the appellant did not require any further psychiatric review and said he appeared to be settled with regard a future without his wife. The sentencing judge accepted by reference to those reports that the appellant was no longer a threat to his wife and that little by way of personal deterrence was necessary.
In those circumstances, and notwithstanding the gravity of the offending, I consider that this is a case where it is appropriate to reflect the positive steps taken by way of rehabilitation of the appellant in the imposition of a lower non-parole period than otherwise would have been the case. I would fix a non-parole period of nine months. If it were not for the remarks of Dr Raeside the non-parole period would have been higher.
I would therefore allow the appeal and in lieu of the sentence previously imposed, sentence the appellant to be imprisoned for a period of two years and nine months with a non-parole period of nine months. The sentence and the non-parole period will commence from the date he was taken into custody.
GRAY J: I agree with the reasons of Nyland J. The appeal should be allowed. I agree with the proposed orders.

[2003] SASC 249

14 August 2003