R v Parisi - [2003] SASC 249

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…

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.

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Details

AGLC: R v Parisi [2003] SASC 249
Case: [2003] SASC 249
Decision Date: 14 August 2003

CaseChat Overview and Summary

The Court of Criminal Appeal heard an appeal against sentence from the appellant, Parisi, who had pleaded guilty to various charges including damaging property, breaching a domestic violence restraining order, threatening life, and assault occasioning actual bodily harm. The appellant's wife was the victim of each of the offences. The District Court judge imposed a sentence of three years and two months imprisonment with a non-parole period of 18 months, discounting the penalty by about 20% due to the appellant's pleas of guilty, contrition, and remorse. The appellant appealed against the sentence, arguing that it was manifestly excessive, and that the sentencing judge failed to give adequate weight to the appellant's rehabilitation efforts and made an inadequate allowance for the restrictions imposed on him when released on bail. The appellant also argued that the judge erred in the exercise of his discretion in not suspending the order for imprisonment.

The Court of Criminal Appeal considered the legal issues raised on appeal, including whether the sentence was manifestly excessive and whether the sentencing judge failed to give adequate weight to the appellant's rehabilitation efforts and made an inadequate allowance for the restrictions imposed on him when released on bail. The Court also considered whether the judge erred in the exercise of his discretion in not suspending the order for imprisonment. The Court found that the appellant's conduct was extremely serious, consisting of three episodes of violent behaviour in a domestic situation. The Court considered that the appellant's conduct took place in breach of a domestic violence restraining order, which is an aggravating factor. The Court concluded that this was not an appropriate case for suspension of sentence. The Court also found that the sentence imposed by the District Court judge was manifestly excessive. The Court considered that the appellant should be given credit for the six weeks imprisonment served by him prior to the date of sentence, as well as an allowance for the period subsequently spent on home detention bail. The Court considered that the appropriate sentence was two years and nine months imprisonment, with a non-parole period of nine months.

The Court of Criminal Appeal allowed the appeal and in lieu of the sentence previously imposed, sentenced 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 the appellant was taken into custody. The Court of Criminal Appeal also noted that the District Court judge had erred in his calculation of the maximum penalty for the property damage offences. The Court considered it necessary to set aside the sentence imposed by the District Court judge and exercise the sentencing discretion afresh.

Orders