R v Perdikoyiannis

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SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PERDIKOYIANNIS, CONDO & PEABODY

[2011] SASCFC 82

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice White)

11 August 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - PARITY BETWEEN CO-OFFENDERS - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - OTHER PARTICULAR CASES

Crown application for permission to appeal against sentence imposed on three respondents: Perdikoyiannis, Condo and Peabody – where respondents pleaded guilty to aggravated causing serious harm with intent, theft and attempted theft committed in 2009 – where Condo also pleaded guilty to causing harm with intent and threaten to cause harm committed in 2008 – where Judge utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) in respect of all respondents – where head sentence of four years and eight months imposed on all respondents - where all offending occurred in circumstances where respondent’s were settling private disputes – where Perdikoyiannis on parole at time of offending – where Peabody only respondent who was facing term of imprisonment for the first time.

Whether sentences imposed manifestly inadequate – whether Judge failed to distinguish appropriately between the respondents when sentencing – discussion about powers of court on Crown appeal against sentence – observations about sentencing for conduct which amounts to deliberate private retribution.

Held:

(The Court) The sentences imposed were manifestly inadequate and were so low as to shock the public conscience – the Judge failed to properly take into account the material differences between the respondents.

(White J) As to the approach to section 18A, the Judge’s failure to identify at least some of the notional individual sentences has contributed to the overall inadequacy of the sentences.

On resentencing:

(The Court) It is appropriate to utilise section 18A in respect of all respondents.

As to respondent Peabody:

(The Court) Sentence of imprisonment of six years imposed and a non-parole period of three years fixed.

As to respondent Condo:

(Gray and Anderson JJ) For the 2008 offending, sentence of imprisonment of four years imposed - as to the 2009 offending, sentence of imprisonment of seven years imposed -   both sentences to be served cumulatively – having regard to the principle of totality, sentence would be crushing – reduction of one year made to the sentence imposed for the 2008 offending – total period of imprisonment to be served is 10 years and a non-parole period of six years is fixed.

(White J, in dissent) For the 2008 offending, would impose sentence of imprisonment of three years and six months – for the 2008 offending, would impose sentence of imprisonment of six years and four months – total period of imprisonment to be…

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Details
Case
[2011] SASCFC 82
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions applied for leave to appeal against sentences imposed on three respondents: Perdikoyiannis, Condo, and Peabody. The respondents had pleaded guilty to charges including aggravated causing serious harm with intent, theft, and attempted theft, all committed in 2009. Condo also pleaded guilty to offences from 2008, namely causing harm with intent and threatening to cause harm. The sentencing judge had applied section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to all respondents, imposing a head sentence of four years and eight months on each. The offending occurred in the context of respondents settling private disputes, with Perdikoyiannis on parole at the time and Peabody facing imprisonment for the first time.

The central legal issues before the appellate court were whether the sentences imposed were manifestly inadequate and whether the sentencing judge had failed to adequately distinguish between the respondents when determining their sentences. The court was also required to consider the principles governing Crown appeals against sentence and to address the sentencing considerations for conduct involving deliberate private retribution.

The appellate court acknowledged the seriousness of the offences, describing them as "brutal and vicious assaults" and noting that the community cannot permit individuals to engage in "private warfare" or acts of retaliation. The court emphasised that such premeditated violence, where individuals take the law into their own hands, warrants significant punishment, with general deterrence being a crucial consideration, particularly when offenders operate outside societal norms. While acknowledging the utility of a guilty plea in facilitating the course of justice and the potential for further reductions based on contrition and remorse, the court found that the sentencing judge's approach did not adequately reflect the gravity of the offending and the need for appropriate differentiation between the offenders. The court also highlighted the importance of parity between co-offenders, but stressed that this principle does not preclude differentiation where circumstances warrant it.

Orders

Orders of the court

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Background

Background to the litigation

The Director sought leave to appeal in respect of all sentences. It was contended that correct sentencing principles had not been followed and that manifestly inadequate sentences had been imposed.The Facts Some time in November 2008, the respondent, Condo, became involved in an alleged dispute between the victim and a third party. The dispute was said to relate to a debt regarding the use of a motor vehicle. It is unclear why Condo became involved in the alleged dispute. Condo approached the victim in November 2008 claiming that the victim owed money to the third party. Apparently the victim explained that as far as he was concerned the dispute had been sorted out. On 7 December 2008, Condo, according to the unchallenged findings of the sentencing Judge, took the law into his own hands. He went to the victim’s home, the victim opened the front door and, without provocation or warning, Condo delivered a heavy blow to the victim’s face, breaking his jaw. Condo then produced a large knife. The victim ran off and while doing so, verbally abused Condo. At this point Condo completely lost control and chased the victim by car. Condo drove both on the road and footpath pursuing the victim who was seeking to escape. Condo’s conduct in chasing the victim in the car gave rise to the offence of threatening to cause harm. On 21 May 2009, Perdikoyiannis visited the same victim at the victim’s home. Apparently, so it was said, there was a dispute concerning another motor vehicle. An arrangement had been made for that visit and at the time that the arrangement was made, Condo and Peabody were with Perdikoyiannis. According to the findings of the Judge, when Perdikoyiannis came to the front door, possibly following some conversation, the victim made as if to retreat and attempted to shut the door. Perdikoyiannis grabbed the victim and punched him in the face. The two men wrestled on the ground in the front yard. It was suggested that the victim had been engaged with others in the cooking of methylamphetamines. While wrestling on the ground Perdikoyiannis shouted words to the effect “where is the money from all of the cooks you have been doing?”. At this point Condo and Peabody left their nearby motor vehicle and ran to the scene of the fight. All three respondents became involved. To adopt the sentencing Judge’s words, they engaged “in a brutal and vicious assault of [the victim], kicking and stomping his head, face, legs, ribs and arms whilst [the victim] was on the ground”. The Judge noted that each of the respondents were large and powerful men and the victim had no chance to defend himself against the three acting in combination. During the course of the attack, Condo put the victim into a headlock and threatened him with the following words “You’re going to sleep, you’re going to sleep”. At that point Condo picked up a piece of wood from a broken crate, put it to the victim’s throat and said “You’re going to help us set R up”. R was apparently an associate of Condo, Perdikoyiannis and the victim. This demand was repeated and further threats made.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J WHITE J

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Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, WHITE J

It is important for Judges when sentencing to recognise the true significance of a plea of guilty. A plea of guilty demonstrates a willingness on the part of a defendant to facilitate the course of justice. There may of course be additional material relevant to the making of a reduction, more particularly, evidence of contrition and remorse. When the sentencing Judge spoke of “utilitarian grounds”, I understand that to be a reference to the respondents demonstrating a willingness to facilitate the course of justice. The reference to additional factors I understand to be a reference to the finding of contrition and remorse on the part of each respondent.Consideration of the Director’s Applications It is convenient to first address the offending of the three respondents in May 2009. The offences were serious. Each respondent faced a maximum penalty of imprisonment of 25 years in respect of the offence of aggravated causing serious harm with the intent of causing serious harm; a maximum penalty of six years and eight months imprisonment for the offence of attempted theft and a maximum penalty of 10 years imprisonment for the offence of theft. The sentencing Judge was correct when he addressed the seriousness of the offence of causing serious harm with intent to cause serious harm as follows:Unprovoked and unjustified acts of violence, no matter who the victim, are abhorrent to our community. Each episode of violence in this case was a serious example of the charged offence. General deterrence, particularly where conduct of this nature is engaged in by persons who operate according to their own rules and outside the rules adopted by mainstream society, is a significant consideration. I add that the attempted theft and theft offences were also serious offences, even though no harm ultimately was suffered by the owners of the property concerned. This offending on its own in the circumstances would merit a prison term.The Judge was correct when he further categorised this offence as a “brutal and vicious assault”. The observations of Bray CJ in Rainbird are of particular relevance:[25]Her Honour said in imposing sentence, “..the community cannot allow people to wage private warfare and serious acts of retaliation like this one cannot go unpunished.” With that I emphatically agree. As I said in another case recently, violence has increased, is increasing, and ought to be diminished, and what the courts can do to achieve the diminution of violence it is their duty to do. I suppose it will never be possible to prevent acts of violence committed in moments of passion, because when peoples’ anger is aroused very often they have no time to think, and act impulsively. Such cases, in my view, should be treated more leniently than a case like this where the whole thing was premeditated. It seems to me that the three accomplices set out with a deliberate intention to avenge themselves by violence. The law provides ample redress for violence. If the applicant was assaulted on a previous occasion she had her remedy, she could have gone to the police. It cannot be permitted that people should take the law into their own hands in this way and be judge, jury and executioner in their own cause.[25] R v Rainbird (1974) 63 LSJS 173, 173.