R v Perdikoyiannis - [2011] SASCFC 82

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 served is nine years and 10 months – would fix a non-parole period of five years and 10 months.
As to respondent Perdikoyiannis:
(Anderson and White JJ) After taking account of the period of one year and eight months in custody before being sentenced, a sentence of five years and four months imposed - unexpired period of parole of two years, five months and 28 days - total period to be served in custody of seven years, nine months and 28 days – non-parole period of four years and nine months fixed.
(Gray J, in dissent) Bringing to account time spent in custody, would impose sentence of imprisonment of six years and four months – bringing to account unexpired period of parole, the period to be served in custody is eight years, nine months and 28 days - would fix a non-parole period of six years.
Criminal Law Consolidation Act 1935 (SA) s 19, s 23, s 24, s 134, s 270A, s 352, s 353 and s 340; Criminal Law (Sentencing) Act 1988 (SA) s 9 and s 18A; Correctional Services Act 1982 (SA) s 75, referred to.
R v Willetts and Gurney [2009] NSWSC 1201, applied.
R v Readman (1990) 47 A Crim R 181; R v Airey [2006] VSCA 31; R v Ierace (1990) 158 LSJS 340; R v Gray [1977] VR 225; R v McInerney (1986) 42 SASR 111; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235; R v Tu (2001) 216 LSJS 297; R v Symonds [1999] SASC 217; R v Copeland (No 2) (2010) 108 SASR 398; R v Waugh (2005) 93 SASR 274; R v Saunders [2011] SASCFC 37; R v Harkin (2011) 109 SASR 334; R v Hansen [2011] SASCFC 10; R v Creed (1985) 37 SASR 566; R v Miller (2000) 76 SASR 151; Malvaso v The Queen (1989) 168 CLR 227; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; Dinsdale v The Queen (2000) 202 CLR 321; R v Marikar [2010] SASCFC 36; R v Drewett (1983) 35 SASR 344; R v Mangelsdorf (1995) 66 SASR 60; R v Elliott (2001) 121 A Crim R 254; R v Ivic [2006] SASC 8; R v Robinson [2004] SASC 189; R v Meers (1998) 101 A Crim R 329; Cameron v The Queen (2002) 209 CLR 339; Siganto v The Queen (1998) 194 CLR 656; R v Rainbird (1974) 63 LSJS 173; R v Harkin (2011) 109 SASR 334; Director of Public Prosecutions v Whiteside (2000) 1 VR 331; R v Sheekey [1996] EWCA Crim 415; R v Elmir [2003] NSWCCA 192; Lovell v The Queen [2006] NSWCCA 222; Barlow v The Queen (2008) 184 A Crim R 187; R v Willetts [2009] NSWSC 1201; R v MacGowan (1986) 42 SASR 580; R v Place (2002) 81 SASR 395; R v Abdulla (2011) 109 SASR 258, considered.

R v PERDIKOYIANNIS, CONDO & PEABODY
[2011] SASCFC 82
Court of Criminal Appeal Gray, Anderson and White JJ
GRAY J:

The Director of Public Prosecutions seeks permission to appeal against sentences imposed by a District Court Judge on the three respondents: Aristidis Perdikoyiannis, Francesco Condo and Bronte John Peabody.
The respondents all pleaded guilty to the offences of aggravated causing serious harm with intent to cause serious harm,[1] theft[2] and attempted theft.[3] This offending occurred on the one occasion on 21 May 2009 in suburban Adelaide. The respondent, Condo, also pleaded guilty to the offences of causing harm with intent to cause harm[4] and threatening to cause harm,[5] those offences occurring some six months earlier on 7 December 2008. The respondents were all sentenced on 19 April 2011.
[1] Contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to sections 134 and 270A of the Criminal Law Consolidation Act 1935 (SA).
[4] Contrary to section 24(1) of Criminal Law Consolidation Act 1935 (SA).
[5] Contrary to section 19(2) of the Criminal Law Consolidation Act 1935 (SA).
In determining Condo’s sentence the Judge utilised his powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence of two years and four months imprisonment, reduced from three years on account of the pleas of guilty in respect of the December 2008 offending. The Judge imposed the one sentence of four years and eight months, reduced from six years on account of the pleas of guilty in respect of the May 2009 offending. The Judge directed that the sentences be served cumulatively leading to a total sentence of seven years. The Judge fixed a non-parole period of four years. Both the head sentence and the non-parole period were backdated to commence on 5 June 2009.
In determining the sentence to be imposed on Perdikoyiannis, the Judge acted pursuant to section 18A of the Sentencing Act and imposed the one sentence for all three offences. The Judge started with a term of four years and eight months reduced from six years on account of pleas of guilty. The Judge then brought to account a period of one year and eight months being time spent in custody on remand. This led to a sentence of three years imprisonment. The Judge directed that this sentence be served cumulatively upon and to commence at the expiration of the unexpired balance of parole of two years, five months and 28 days. The Judge directed that Perdikoyiannis commence serving the unexpired balance of parole on the day of sentencing. The Judge then fixed a non-parole period of 18 months in respect of the total period of imprisonment to be served of five years, five months and 28 days.
The Judge pursuant to section 18A of the Sentencing Act imposed the one sentence with respect to all of Peabody’s offending. The Judge imprisoned Peabody for four years and eight months reduced from six years on account of his pleas of guilty. The Judge fixed a non-parole period of two years and six months. The Judge backdated the sentence to 5 September 2009, the date on which Peabody was taken into custody.
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.
Whilst the victim was being held in a headlock, Perdikoyiannis demanded keys from the victim’s girlfriend to a white Commodore. Attempts to start this vehicle were unsuccessful. These facts gave rise to the offence of attempted theft.
Following the unsuccessful attempt to start the Commodore, Perdikoyiannis demanded and was given keys to a red Mercedes and this vehicle was driven away. It was later recovered by Police unharmed. The taking of the Mercedes gave rise to the offence of theft.
The sentencing Judge was satisfied that at least Condo and Perdikoyiannis had business to settle with the victim and that they may have wished to recover money from the victim because they believed he had been cooking and selling methylamphetamines contrary to their interests. The Judge acknowledged that there may have been other reasons, possibly to set R up, possibly relating to some dispute about a car or possibly about something else. The Judge was satisfied that there were old enmities between Condo and the victim and between Perdikoyiannis and the victim. The Judge was further satisfied that Perdikoyiannis had an intention at the time the arrangement was made to meet the victim at the front door and that in the event the victim did not provide a satisfactory response to his concerns, Perdikoyiannis would assault or provoke a physical altercation with the victim. The Judge was further satisfied that Condo and Peabody lay in wait to lend such assistance as may be necessary. In this sense there was a level of premeditation to do what was necessary to resolve whatever issues Condo and Perdikoyiannis had with the victim.
The Judge considered that Peabody may have had a lesser understanding or involvement in the dispute between Condo and Perdikoyiannis and the victim. However, the Judge found that Peabody was present at the time the plan was put in place, voluntarily involved himself in the process, came along as additional muscle and was a full participant in the assault itself, being prepared to assist by doing whatever it took to resolve the issues that Condo and Perdikoyiannis had with the victim.
The Judge concluded that although the crimes of December 2008 and May 2009 were factually unrelated, there was some old enmity that played a role in the second incident. The Judge, however, accepted that Peabody had no prior involvement with the victim. The Judge concluded that the respondents jointly committed the May 2009 offences. He saw no reason to differentiate between the roles each played when assessing culpability.
Within an hour, the victim had been admitted to the Royal Adelaide Hospital. Had he not received prompt medical treatment his injuries would have become life-threatening. He remained in hospital for about 10 days. He suffered serious injuries, being treated for a broken jaw, a fractured eye socket, a fractured nose, broken ribs, a collapsed lung and bruising. Surgery was required to repair his jaw. Sutures were required to close wounds to his forehead and nose.
Victim impact statements were tendered from the victim and from his brother-in-law and friend. The victim described the brutal assault in terms that confirmed that he had been exposed to a terrifying experience. He remains in constant fear and his life has been severely disrupted. He continues to have disturbed sleep and nightmares about being chased, bashed and shot. He is unduly anxious and has a constant feeling of vulnerability for himself and for his family.
The respondents pleaded guilty following a recasting of the charges and the abandonment of a number of counts. Negotiations between the parties had been ongoing for some time. The Judge when dealing with Condo remarked:
You pleaded guilty to the five offences before me at the first available opportunity once the latest information was presented. I accept that from May 2010 your advisors had been attempting to resolve a greater number of charges on the basis that ultimately was accepted by the Crown. I will give you a substantial reduction for your pleas and one that is more than that which otherwise would have been available simply on utilitarian grounds.
When dealing with Perdikoyiannis the Judge said:
Your pleas of guilty also carry with them a substantial utilitarian value together with the additional considerations relevant to [Condo’s] pleas. …
Finally when dealing with Peabody, the Judge said:
I will give you, [Peabody], the same percentage reduction on account of your pleas of guilty for the same reasons as concern [Condo] and [Perdikoyiannis].
A disputed facts hearing occurred. The dispute inter alia concerned the question of premeditation. There was no oral testimony. The respective submissions concerned the nature and extent of the inferences to be drawn from the depositions. A number of the respondents’ contentions were rejected and important findings were made adverse to the respondents. However, in some other respects submissions by the Crown were rejected. The findings of fact of the sentencing Judge were not challenged on appeal.
At the time of sentencing, Condo was aged 41 years and had worked as a panel beater in the construction industry and as a driver and coordinator in a transport company. He and his spouse of 12 years had, at the time of sentencing, two children aged 10 and eight years. He also had a child aged 17 years from another relationship. Condo is an insulin dependant diabetic and at times requires hospitalisation. His diabetes makes it likely that he will suffer from a number of other health problems including those affecting his heart, circulation and eyes. He faces a shortened life expectancy with a possibility of limb amputation in the future.
Condo has criminal antecedents extending over two decades. Those antecedents include an offence of threatening another person with a firearm in 1992 which led to a suspended term of imprisonment. In 1996 he was sentenced to a further suspended prison sentence for two offences of preventing a person from attending as a witness. Since that time Condo’s antecedent record discloses further firearm offending and driving offences. At the time of the May 2009 offending, Condo had committed the December 2008 offences.
As noted above, Condo had been in custody since 5 June 2009 and had spent his time on remand in either the Adelaide Remand Centre or G Division at Yatala. He had spent a number of weeks in solitary confinement with limited periods of access to family visits.
Perdikoyiannis was aged 31 years at the time of sentencing. He was brought up in suburban Adelaide. When aged about 13 years his parents separated and at first he lived with his father. His siblings, two brothers and a sister, continued to live with their mother. He left school when aged 14 years and commenced an apprenticeship when aged 16 years as a panel beater. At this time, he returned to live with his mother. In 1998, aged 18 he continued his apprenticeship and worked at a suburban crash repairer. In 2001, he changed employment to work at a pizza bar. During 2001, he was involved in a serious motor cycle accident and sustained a fracture to the left ankle that has left ongoing problems.
Perdikoyiannis has extensive criminal antecedents. When aged 17 years he was convicted of the offence of burglary and was sentenced to a suspended six month detention order. In 2000 he was convicted by jury verdict of the offences of false imprisonment, wounding with intent to do grievous bodily harm and armed robbery. He was sentenced to a term of imprisonment of nine years with a non-parole period of six years. It was whilst he was released on parole that he committed the offending the subject of the within proceedings.

A forensic psychologist examined Perdikoyiannis in March 2011. According to the report provided by the psychologist, Perdikoyiannis exhibited signs of anxiety and uncertainty, but did not present with an aggressive or confident persona. Although no formal testing of intellectual functioning was conducted, the psychologist estimated Perdikoyiannis to be operating within the low average range. In the opinion of the psychologist, his rehabilitation is dependent on his steadfastly refusing contact with individuals associated with unlawful activity. It was suggested that he needed to develop independent thinking skills. Evidence before the sentencing Judge established that Perdikoyiannis had strong support from family and friends, had a supportive partner and that employment would be available to him on his release from custody. A report from prison authorities disclosed that Perdikoyiannis had made considerable efforts to improve himself and held a trusted employment position as a groundsman at Yatala Prison.
At the time of sentencing Peabody was in his mid-to-late thirties. He came from a strong, stable and supportive family. His father died when Peabody was six years of age and he was brought up in Port Augusta by his mother. Peabody worked in the construction industry in Adelaide. He also worked for a time in Port Augusta. While in Adelaide, he met Condo and took employment with Condo. Their working relationship developed into a friendship. Peabody had met Perdikoyiannis, but they were not close.
From a relationship that has since ended, Peabody had a daughter who was aged five at the time of sentencing. Peabody continued to have a good relationship with his estranged partner and also with their daughter. The sentencing Judge accepted that Peabody had a strong and established work ethic.
Peabody had criminal antecedents extending over a period of almost two decades. All but one offence led to the imposition of a fine. However, in 2004 Peabody committed the offences of assault police and resist police, leading to convictions and release on a good behaviour bond in 2005. At no time prior to the present offending had Peabody been sentenced to a term of imprisonment.
Powers and Duties of the Appeal Court[6]
[6] See further a recent consideration of these principles in R v Saunders [2011] SASCFC 37; R v Abdulla (2011) 109 SASR 258; R v Harkin (2011) 109 SASR 334.
Pursuant to section 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) the Director may appeal against a sentence with the permission of the Full Court. The question of the grant of permission to appeal is a distinct one, to be decided separately from the question of the substantive appeal itself.[7] Permission to appeal should only be granted to the Director in rare and exceptional cases.[8]
[7] Malvaso v The Queen (1989) 168 CLR 227, 232-233; Everett v The Queen (1994) 181 CLR 295, 303.
[8] Everett v The Queen (1994) 181 CLR 295, 299-300.
The principles regarding applications by the Director for permission to appeal against sentence are settled. The Director will be granted permission to appeal if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual Judges as to particular crimes or types of crimes to be corrected, or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would “shock the public conscience”. If the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[9] Furthermore, an error must be identified before a sentence may be interfered with.[10] Such error may be inferred from a result that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[11]
[9] R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168, 172.
[10] As Kirby J explained in Dinsdale v The Queen (2000) 202 CLR 321, 339-340:
… As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts. [Footnote omitted.]
[11] Dinsdale v The Queen (2000) 202 CLR 321, 339-340. See further the authorities on Crown appeals against sentence as set out in R v Marikar [2010] SASCFC 36.
The basis for the ‘rare and exceptional’ test for granting leave to appeal to the Director, lies with the principle of double jeopardy.[12] The principle of double jeopardy has historically been taken into account by an appeal court in all stages of the appeal process in relation to an appeal against sentence by the Director; that is, when assessing whether permission to appeal should be granted[13] and whether an appeal should be allowed,[14] as well as when considering the sentence to be imposed if that imposed at first instance is quashed and the court is resentencing the offender.[15] The court’s powers and duties on an appeal against sentence are set out in section 353 and section 340 of the Criminal Law Consolidation Act.
[12] R v Marikar [2010] SASCFC 36, [33]-[37]; R v Nemer (2003) 87 SASR 168, [26]; Everett v The Queen (1994) 181 CLR 295, 299; Malvaso v The Queen (1989) 168 CLR 227, 234.
[13] R v Marikar [2010] SASCFC 36, [33]-[37]; R v Nemer (2003) 87 SASR 168, [26]; Everett v The Queen (1994) 181 CLR 295, 299; Malvaso v The Queen (1989) 168 CLR 227, 234.
[14] R v Drewett (1983) 35 SASR 344, 346.
[15] R v Mangelsdorf (1995) 66 SASR 60, 71; Dinsdale v The Queen (2000) 202 CLR 321, [62]; R v Elliott (2001) 121 A Crim R 254, [96].
Section 353 relevantly provides:
Determination of appeals in ordinary cases
…
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
(5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
Section 340 of the Act is to be considered in conjunction with section 353(4) of the Act.[16] Section 340 provides:
[16] Section 340 of the Criminal Law Consolidation Act 1936 (SA) was introduced by amendment on 3 August 2008.
Appeal against sentence
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a)     impose the sentence that should have been imposed in the first instance; and
(b)     order that the sentence—
(i)will be taken to have come into effect on a date before the date of the order; or
(ii)     will take effect on a date on or after the date of the order.
Notwithstanding its mandatory terms,[17] section 353(4)(a)(i) has been interpreted as still being subject to the application of the double jeopardy principle.[18] This has allowed the court to resentence and impose a sentence which is in fact something less than or other than the sentence which the court thinks ought to have been passed.[19]
[17] That is, by the use of the word “must”.
[18] R v Mangelsdorf (1995) 66 SASR 60.
[19] See for example R v Ivic [2006] SASC 8, [56]-[57]; R v Robinson [2004] SASC 189, [60]-[61], [65]; R v Mangelsdorf (1995) 66 SASR 60, 71; see also R v Meers (1998) 101 A Crim R 329, 332-333.
However, section 340 precludes the court from having regard to the “rule of law”, known as double jeopardy when resentencing.[20] The effect of section 340 is to remove from consideration any rule of law enabling a court to impose, when resentencing, a sentence other than the sentence which the court thinks ought to have been imposed at first instance.[21] It is important to emphasise, however, that the section 340 only operates once the decision to grant permission to appeal to the Director has been made.
[20] R v Saunders [2011] SASCFC 37.
[21] R v Saunders [2011] SASCFC 37.
The Pleas of Guilty
As earlier noted, the Judge made a reduction of 22 per cent in respect of the sentence to be imposed on each respondent. The Judge in arriving at this percentage reduction laid particular emphasis on what he described as “utilitarian grounds”. The Judge also identified what he described in general terms as “additional considerations”.
It is important to recall that the reduction made is on account of contrition and remorse. The High Court in Cameron[22] discussed the relevance of a plea of guilty in the sentencing process. Gaudron, Gummow and Callinan JJ observed:[23]
[22] Cameron v The Queen (2002) 209 CLR 339.
[23] Cameron v The Queen (2002) 209 CLR 339, [11], [13]-[14].
It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:
"a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."
…
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.
[Footnote omitted.]
Kirby J commented as follows:[24]
The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate co-operation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused. In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity. But even a belated plea will normally attract a discount.
[Footnotes omitted.]
[24] Cameron v The Queen (2002) 209 CLR 339, [65].
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.
Attacks in revenge threaten the security of our community.[26] Taking the law into one’s own hands undermines the manner in which our justice system operates.[27] The observations of Brooking JA in DPP v Whiteside in the Victorian Supreme Court, drawing on previous authority, are pertinent:[28]
… "vigilante conduct" which his Honour described as "premeditated, purposive conduct wherein the actor takes the law into his own hands having eschewed due process of law" …
…
"Yours was not vigilante conduct", his Honour said to the respondents. In a sense this was true. The police had been sent for; there was no organised group formed to deal with lawbreakers with entire disregard for the public system of law enforcement. But on the judge's findings - inevitable on the evidence - this was "vigilante conduct" in the sense that both men were motivated by a desire to punish a supposed rapist. They wanted to administer corporal punishment to an innocent, inoffensive and defenceless man whom they believed (quite unreasonably) to be a sexual offender. The case is made worse by the fact that, while the deceased was not set upon by a large number of persons, he was attacked by two men acting in concert. The victim was 45, with physical disabilities. His assailants were two young men in their twenties, both well built (especially Whiteside), both affected by drink and both out of control.
Vigilante enterprises must be suppressed, as appellate courts have made clear. Where four men, acting on "rumour and innuendo", assaulted a fifth for "messing with kids", the Court of Appeal endorsed the judge's description of the "vigilante action" and said that it called for serious reaction from any court anxious to preserve the rule of law; R. v. Sheekey. Similar offences committed by only one or two offenders have, as one would expect, drawn the same response: Attorney-General's Reference (Nos. 17 and 18 of 1994) ("That is what this case was about, people taking the law into their own hands. It has to be stopped"); R. v. Kennedy. ("vigilante enterprises of this kind are simply not tolerated by the community".); R. v. Demittis. ("The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever. It is not the view adopted in this Court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community."); R. v. Brelsford ("Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice.")
[Emphasis added. Footnotes omitted.]
[26] R v Harkin (2011) 109 SASR 334, [42].
[27] R v Harkin (2011) 109 SASR 334, [42] (Gray and Sulan JJ) citing Director of Public Prosecutions v Whiteside (2000) 1 VR 331; R v Sheekey [1996] EWCA Crim 415; see also R v Harkin (2011) 109 SASR 334, [92]-[96] (White J); see further R v Elmir [2003] NSWCCA 192, [20]; Lovell v The Queen [2006] NSWCCA 222, [70].
[28] Director of Public Prosecutions v Whiteside (2000) 1 VR 331, [16], [23]-[24].
The courts must take deliberate, pre-meditated actions, conducted in concert with others, in circumstances of private retribution or vigilante conduct seriously. This is necessary for the preservation of the rule of law in our society, as such conduct is the “antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms”.[29] As Latham J observed in Willetts and Gurney:[30]
… The rule of law is the mark of a civilised society. It allows all of its citizens to live under its protection, confident and secure in the knowledge that if punishment is to be meted out for criminal behaviour, it will only be justified by the observance of the due process of the law. The respect of the community for the rule of law is essential to its maintenance. For these reasons, the penalty must reflect the law’s denunciation of acts of violence carried out by some members of the community against others, in the name of revenge or retribution, no matter how abhorrent the behaviour of those sought to be summarily punished.
[29] Barlow v The Queen (2008) 184 A Crim R 187, [40] (Hall J, with whom McClellan CJ at CL and Price J agreed).
[30] R v Willetts and Gurney [2009] NSWSC 1201, [13].

Although the conduct in the within proceedings might not be described as “vigilante”, I consider that the above principles nevertheless have relevance to a consideration of the circumstances and seriousness of the within offending. The unchallenged findings of the Judge demonstrate that the respondents acted with a level of premeditation and in concert with one another. Their conduct was vicious and violent, and undertaken in the context of “settling a dispute” over a motor vehicle.
The crimes of attempted theft and theft also represented serious offending. The Judge was correct to observe that these offences called for a term of imprisonment in their own right.
In my view, the sentences imposed in respect of the offending of May 2009 were inadequate and manifestly so. The sentences were so low as to shock the public conscience. In these circumstances I have no hesitation in concluding that this Court should grant the Director permission to appeal, allow the appeal and resentence the respondents.
Further, I consider that the sentencing Judge erred in imposing the same head sentence on each respondent. It may be accepted that each was a joint participant in the attack on the victim and in the other offending. Each was involved in the planning that took place. However, there are material differences between the respondents, differences which were relevant considerations in the sentencing process that ought to have been taken into account. Before turning to consider those differences it is appropriate to say something about the principle of parity. The following observations of King CJ in MacGowan are relevant: [31]
Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal on appeal by the Attorney-General or the offender even though the sentence under review, considered apart from disparity, might be regarded as within the permissible sentencing range.
[Emphasis added.]
[31] R v MacGowan (1986) 42 SASR 580, 582-583 drawing on the principles as laid down by the High Court in Lowe v The Queen (1984) 154 CLR 606.
Perdikoyiannis’ offending was aggravated by the fact that he committed the offending while on parole. Although the Judge made a reference to the fact that the offending occurred while on parole, he did not bring this matter to account as an aggravating circumstance when fixing the head sentence. Counsel for Perdikoyiannis accepted that this factor was a matter of aggravation relevant to the determination of the head sentence.
Although the respondents all had criminal antecedents, Peabody had engaged in the least serious prior offending. Insofar as those antecedents precluded or lessened the scope for leniency, Peabody’s case for some leniency in the determination of the head sentence was the strongest.
Condo’s previous offending in December 2008 involving an assault on the same victim was a matter of particular relevance when considering his criminal antecedents. Although this offending did not give rise to a prior conviction as at May 2009, it was an incident of prior criminal conduct. It had a particular relevance because it was criminal conduct involving personal violence towards the same victim. Condo was not to be sentenced twice in respect of the December 2008 offending. However, it was a relevant antecedent to be considered. As a consequence of this conduct and his other criminal antecedents, he could not expect any leniency when being sentenced in respect of his offending in May 2009. The sentencing Judge in discussing Condo’s antecedents made no reference to this offending when determining a head sentence for Condo.
There is a further indication that the Judge’s sentencing discretion miscarried. This indication is apparent from an examination and comparison of the non-parole periods that were fixed.
Perdikoyiannis’ prior sentence for not dissimilar offending had, as discussed above, led to a head sentence of nine years with a non-parole period of six years. The non-parole period was 66 per cent of the head sentence. The present offending occurred some sixteen weeks after Perdikoyiannis’ release on parole. The Judge in the within proceeding fixed a non-parole period at about 44 per cent of the head sentence. It is difficult to discern anything in the material before the sentencing Judge that would warrant such a lenient non-parole period in these circumstances.
The treatment of Perdikoyiannis may be contrasted to that of Peabody. Peabody, as discussed above, had at no prior time been sentenced to a term of imprisonment either immediate or suspended. He had strong family support and a strong work ethic. However, the Judge fixed a non-parole period at approximately 55 per cent of the head sentence. This contrast would suggest that the sentencing discretion miscarried.
In these circumstances it is necessary for this Court to resentence each respondent in respect of the 2009 offending.
It is necessary to return to the sentence imposed on Condo with respect to the December 2008 offending. The circumstances of that offending have been set out earlier in these reasons. Condo faced a maximum term of imprisonment of 10 years for the offence of causing harm with intent to cause harm and a maximum term of imprisonment of five years with respect to the offence of threatening to cause harm. It was appropriate for the sentencing Judge to utilise section 18A as the offences were committed during an ongoing course of conduct. However, it is to be recognised that each offence was a serious criminal offence occasioned by discreet acts. It is to be recalled that the victim sustained facial injuries including a fractured jaw during the initial assault.
Condo’s conduct on this occasion involved the deliberate use of violence and the infliction of personal injury with a view to redressing some perceived grievance. Condo was seeking to remedy some alleged wrongdoing by the victim to a third party. General deterrence has a particular relevance when punishment is determined for offending of this nature. The threatening to cause harm offence was also very serious. Condo attempted to use a motor vehicle as a weapon. Although his attempt failed it remained a serious incursion into crime.
Condo’s prior criminal antecedents precluded leniency in the fixing of a head sentence. The sentence imposed of two years and four months was manifestly inadequate. It was so inadequate as to shock the public conscience. I would grant the Director permission to appeal against this sentence, allow the appeal and resentence Condo for his offending in December 2008.
Resentencing
When resentencing I have had regard to the relevant circumstances pertaining to each respondent. I have paid particular regard to the facts and circumstances set out earlier in these reasons.
Condo
Condo should be sentenced in respect of the December 2008 offending to the one sentence of imprisonment of four years. In arriving at this sentence of four years, I have made a reduction of one year on account of his contrition and remorse as evidenced in part by his pleas of guilty. However, I propose to reconsider the appropriateness of this sentence having regard to the principle of totality.
Condo should be sentenced in respect of the offending of May 2009 to the one sentence of imprisonment pursuant to section 18A of the Sentencing Act. In arriving at the head sentence I would make a reduction of approximately one-fifth on account of contrition and remorse evidenced in part by his pleas of guilty. This reduction would lead to a head sentence of seven years imprisonment. This sentence is to be served cumulatively on the sentence to be served with respect to the December 2008 offending.
The fixing of a non-parole period for Condo will relate to the total sentence to be served by Condo in respect all offending. Were 11 years to be the total sentence to be imposed, I would fix a non-parole period of seven years.
It remains necessary to consider the principle of totality. In Place this Court reviewed the authorities and observed:[32]
[32] R v Place (2002) 81 SASR 395, [85]-[87], [89].
In R v Knight (1981) 26 SASR 573, this Court had occasion to consider the question of totality in circumstances where one of three sentences was ordered to be served cumulatively upon two concurrent sentences. As to the principle of totality, the Court said (at 576):
"To use the language of Lord Parker LCJ in R v Faulkner [(1972) 56 Cr App R 594 at 596], "at the end of the day, as one always must, one looks at the totality and asks whether it was too much"."
King CJ described the principle of totality in R v Rossi (1988) 142 LSJS 451 at 453:
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect ..."
In an earlier judgment, King CJ spoke of the requirement that "at the end of day" a sentencing judge "stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose" (R v Creed (1985) 37 SASR 566 at 568). The view that the question of totality is the final step in the sentencing process was confirmed by Doyle CJ and Olsson J in R v Major (1998) 70 SASR 488 at 490 and 497.
…
The principle was again considered by the High Court in Postiglione v The Queen (1997) 189 CLR 295. McHugh J spoke of ensuring that the aggregation of sentences appropriate for each offence "is a just and appropriate measure of the total criminality involved" (at 308). Kirby J described the principles of "parity" and "totality" as "in the nature of checks" to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. His Honour said it was "then" that the sentencing judge must consider whether the resulting sentence needs further adjustment by reason of parity or totality (at 340-341).
It is my view that a total head sentence of eleven years with a non-parole period of seven years would amount to a crushing sentence. Having regard to the principle of totality I would make a reduction of one year. As a consequence I would adjust the sentence imposed in respect to the December 2008 offending and reduce that sentence from four years imprisonment to one of three years imprisonment.
In summary, I would sentence Condo in respect of the December 2008 offending to the one sentence of three years imprisonment. I would sentence Condo in respect of the May 2009 offending to the one sentence of imprisonment of seven years. These two sentences are to be served cumulatively. In respect of the total period of imprisonment to be served of 10 years, I would fix a non-parole period of six years. The sentence is to be taken to have commenced on the day when Condo was first taken into custody – 5 June 2009.
Perdikoyiannis
Perdikoyiannis should be sentenced in respect of the offending of May 2009 to the one sentence of imprisonment pursuant to section 18A of the Sentencing Act. In arriving at the head sentence I would make a reduction of approximately one-fifth on account of contrition and remorse evidenced in part by his pleas of guilty. I would have regard to the matter of aggravation earlier discussed. It is also necessary to bring to account the period spent in custody relevant to this offending of one year and eight months. Having regard to the foregoing I would fix a head sentence of six years and four months imprisonment. I would direct that this sentence be cumulative upon and take effect from the balance of the unexpired portion of his parole – a period of two years, five months and 28 days. Accordingly, the total term of imprisonment faced by Perdikoyiannis is a period of eight years, nine months and 28 days. I would fix a non-parole period of six years. I would direct that Perdikoyiannis be taken to have commenced serving the unexpired portion of parole on the date when he was sentenced in the District Court – 19 April 2011. His non-parole period is to be taken to have commenced at that time.
Peabody
Peabody should be sentenced in respect of the offending of May 2009 to the one sentence of imprisonment pursuant to section 18A of the Sentencing Act. In arriving at the head sentence I would make a reduction of approximately one-fifth on account of contrition and remorse, evidenced in part by his pleas of guilty. Having made this reduction I would impose a head sentence of six years. In fixing this head sentence I have had particular regard to the fact that Peabody has on no prior occasion faced any form of imprisonment, either immediate or suspended. I also have had regard to his strong family support. I consider he has favourable prospects of rehabilitation. I would fix a non-parole period of three years. I would direct that this sentence commence on 5 September 2009 – the date on which Peabody was first taken into custody.
ANDERSON J. I have had the advantage of reading the drafts from Gray and White JJ.
Essentially I agree with their comments as to the approach to re-sentencing. I agree with Gray J in relation to the re-sentencing of Condo and Peabody. However, I prefer the approach of White J in re-sentencing Perdikoyiannis.
WHITE J. The circumstances giving rise to these three Crown appeals, the personal circumstances of the three respondents, and the sentences imposed by the District Court Judge are set out in the reasons of Gray J. I agree that these are cases in which the Director should be granted permission to appeal, the sentences imposed in the District Court set aside, and that it is appropriate for this Court to re-sentence each respondent. I agree with the re-sentence proposed by Gray J in respect of Mr Peabody, but respectfully differ as to the re-sentencing which is appropriate in the case of Messrs Perdikoyiannis and Condo.
It is appropriate to commence with a summary of the circumstances of the various offences.
Mr Condo’s Offending on 7 December 2008
The circumstances in short are that on 7 December 2008, the respondent Mr Condo went to the home of the victim, G, in suburban Kilkenny. When G opened the door, Mr Condo immediately punched him to his face, breaking G’s jaw. This conduct constituted the offence of causing harm with intent to cause harm.[33] Mr Condo then produced a large hunting knife from his waistband, whereupon G fled on foot. Mr Condo pursued him in his car. The prosecution accepted that in doing so, Mr Condo was not intending to run G down, but the chase was marked by considerable violence and danger, as Mr Condo drove his car at speed and, at times, on the footpath on either side of David Terrace, Kilkenny, all the while screaming demands to G. This conduct constituted the offence of threatening to cause harm[34] which was the subject of Count 2.
[33] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The maximum penalty for this offence is imprisonment for 10 years.
[34] Contrary to s 19(2) of the CLCA. The maximum penalty for this offence is imprisonment for five years.
Mr Condo’s conduct was apparently attributable to a dispute, or perceived dispute, about damage to a car loaned to G by a friend of Mr Condo.
G’s injuries required an operation under general anaesthetic to reduce and fix the fractured jaw. Shortly after his discharge from hospital, G paid a substantial sum to C in discharge, or partial discharge, of Mr Condo’s demands in relation to the damaged car.
The Offences on 21 May 2009
The offences on the evening of 21 May 2009 involved the same victim. The three respondents went to G’s home. Mr Perdikoyiannis had earlier attempted to persuade one Giannakopolous to induce G to come, on a pretext, out from his home. Messrs Condo and Peabody were in Mr Perdikoyiannis’ company at the time that attempt was made.
Mr Perdikoyiannis went to the front door of G’s home. Messrs Condo and Peabody remained in their car nearby but out of sight from G’s front door. G opened the front door and some short conversation of a civil kind may have occurred. G offered to shake hands with Mr Perdikoyiannis. The Judge described what followed in the following passages:
When MG extended his hand you refused or failed to shake it. At this point MG made as if to retreat and shut the door. You instinctively grabbed his collar, pulled him towards you and punched him to the face. MG responded by punching you twice and grabbing at you in a bear hug. The two of you rolled out into the front yard wrestling on the ground. You were shouting words similar to or to the effect of “Where is the money from all the cooks you have been doing?”. …
When the fight started between you, Mr Perdikoyiannis, and MG, you, Mr Condo, and you, Mr Peabody, left your car and started running. You arrived at the time that Mr Perdikoyiannis and MG were on the ground. At this point the three of you involved yourselves in a brutal and vicious assault of MG, kicking and stomping his head, face, legs, ribs and arms whilst he was on the ground. It is this behaviour by the three of you that gives rise to Count 3, aggravated causing serious harm with intent to cause serious harm.[35] Each of you is a large and powerful man. MG had no chance against the three of you in combination.
…
At some time during the assault you, Mr Condo, put the victim into a headlock and threatened him with the words “You’re going to sleep, you’re going to sleep”. You also picked up a piece of wood from a broken crate and put it to your victim’s throat and said “You are going to help us set Rat up”. Rat is a reference to another associate of yours Mr Condo, and of yours, Mr Perdikoyiannis, and also of MG. Mr Condo repeated this demand and made threats towards MG a number of times. Whilst MG was being held in the headlock you, Mr Perdikoyiannis, went towards the front door of the property, demanded and obtained from MG’s girlfriend the keys of MG’s white Commodore. You, Mr Peabody, tried to start the white Commodore but were unsuccessful. This is the basis of Count 4, the attempted theft offence.[36]
MG’s girlfriend then went upstairs followed by Mr Perdikoyiannis, who demanded the keys to a red Mercedes that belonged to the mother of the two brothers who were upstairs. Those keys were made available and the car was taken and driven away. This is the basis of Count 5, the offence of theft.[37] The car was recovered by police within a few days in an undamaged state.
(Footnotes added)
[35] Contrary to s 23(1) of the CLCA. The maximum penalty for this offence is imprisonment for 25 years.
[36] Contrary to ss 134 and 270A of the CLCA. The maximum penalty for this offence is imprisonment for six years and eight months.
[37] Contrary to s134 of the CLCA. The maximum penalty for this offence is imprisonment for 10 years.
G suffered very serious injuries, including broken ribs, a broken jaw, a fractured eye-socket, a fractured nose, a collapsed lung and bruising. These injuries had the potential to be life threatening and necessitated G’s hospitalisation for some 10 days.
Although the sentencing Judge did not accept the whole of the prosecution submission that the respondents had gone to G’s house as part of a careful plan of action, he was satisfied that Mr Perdikoyiannis intended, when arranging to meet G at his front door, to assault or to provoke a physical altercation with G in the event that a satisfactory response from G to his concerns was not immediately forthcoming. The Judge was also satisfied that Messrs Condo and Peabody had laid in wait ready to lend such assistance as might become necessary. The Judge was satisfied, in other words, that there was a level of premeditation by all three men to do whatever was necessary to resolve whatever issues Messrs Condo and Perdikoyiannis had with G. This meant that he rejected the respondents’ submission that the offending had been a spontaneous response to G’s conduct.
The Inadequacy of the Sentences

I agree generally with the reasons of Gray J for concluding that the sentences imposed by the Judge were manifestly inadequate, and that these are cases in which the prosecution appeals should be allowed. I add the following.
It was put to the Judge on behalf of the respondents that all of the offences occurred within a section of society, which included G, which lives by its own rules. In particular, it was put that this section of society had its own means of enforcing debts and obligations, and that the offences were simply a manifestation of those means. The Judge held that while this circumstance may help to explain the offences, it could not justify or mitigate their seriousness. That conclusion was plainly correct. I also consider that this explanation for the conduct of the respondents served to emphasise the need for personal and general deterrence.
The violence involved in the respondents’ conduct was an affront to the maintenance of the rule of law in the community. The respondents’ conduct amounted to unbridled thuggery which a civilised society cannot tolerate. Those who are aggrieved by the conduct of others are not entitled to inflict or threaten physical violence as a means of enforcement of debts and obligations or as a means of effecting retribution. It is not open to subgroups in society to devise and implement means which are outside the law to achieve their own ends. The role of the criminal law in protecting the community requires that sentences for offences of the present kind reflect a firm denunciation of the conduct and a strong deterrent to its repetition.
In this respect, I respectfully agree with the following observations of Latham J in R v Willetts and Gurney:[38]
The rule of law is the mark of a civilised society. It allows all of its citizens to live under its protection, confident and secure in the knowledge that if punishment is to be meted out for criminal behaviour, it will only be justified by the observance of the due process of the law. The respect of the community for the rule of law is essential to its maintenance. For these reasons, the penalty must reflect the law’s denunciation of acts of violence carried out by some members of the community against others, in the name of revenge or retribution, no matter horrid the behaviour of those sought to be summarily punished.
[38] [2009] NSWSC 1201 at [13].
In my respectful opinion, the sentences in this case did not reflect these requirements.
It is to be remembered that the maximum penalty for the offence of aggravated causing serious harm with intent to cause serious harm committed on 21 May 2009 is imprisonment for 25 years.
The Judge held that it was inappropriate to differentiate between the roles played by each of the three respondents when assessing the culpability for the offending on 21 May 2009. Counsel for the Director did not challenge that conclusion.
However, the different personal circumstances of each respondent did make it appropriate to distinguish between them in the sentencing. The Judge appears to have overlooked those differences when taking, in relation to each case, six years as the starting point for the offences committed on 21 May 2009.
Mr Perdikoyiannis had been sentenced in February 2003 for very serious offences of violence: one offence of false imprisonment, one offence of causing grievous bodily harm with intent to do grievous bodily harm, and one offence of armed robbery. He was a member of a group of four men who in May 2000 had, under the pretext of inspecting a vehicle for sale, lured their victim into the back of a van. They had then driven off with him and during a journey of about 30 minutes, had threatened, bashed and robbed him. A District Court Judge had sentenced Mr Perdikoyiannis to imprisonment for nine years with a non‑parole period of six years for those offences.
A stark feature of Mr Perdikoyiannis’ offending on 21 May 2009 is that it occurred only 16 weeks after he had been released on parole as part of that sentence. Further, as can be seen, the offences on 21 May 2009 were generally of a similar character to those committed by Mr Perdikoyiannis in February 2000.
The commission of offences whilst on parole is a circumstance which aggravates those offences.[39] In R v Ierace,[40] King CJ (with whom Legoe and Perry JJ agreed), spoke of the way in which the sentencing should take account of the fact that the offender committed the offences whilst on parole as follows:
The fact that an offence is committed whilst the offender is on parole is a circumstance which a sentencing judge is entitled to take into account. One of the purposes of punishment is to deter the particular offender from continuing to offend. If previous punishments have failed to achieve that end, it may be necessary to increase the level of punishment for that purpose. The fact that an offender is prepared to commit an offence notwithstanding that he is under the sanction of parole may lead the sentencing judge to the conclusion that a stiffer penalty than would otherwise have been imposed is necessary to operate as a deterrence to that particular offender. It is important, however, that a judge who is taking this factor into account should take care that the weight which he gives to the fact that the offender was on parole is no more than is necessary for the purpose of personal deterrence. There should be no element of double punishment for the original offence, because the offender will have to serve the balance of the original sentence.[41]
[39] R v Readman (1990) 47 A Crim R 181 at 184; R v Airey [2006] VSCA 31 at [13].
[40] (1990) 158 LSJS 340.
[41] Ibid at 342-3.
The commission of offences whilst on parole may indicate a contempt or indifference to the law and the rehabilitative purpose of parole. It will usually involve some breach of the trust reposed by the Parole Board in the offender at the time it granted the parole. In this respect, the observations of McInerney and Crockett JJ in R v Gray[42] in relation to offences committed whilst the offender was on bail are apposite:
As to the circumstance that offences were committed whilst the applicant was on bail, it is, we think, permissible for a sentencing judge to take this into account at least to the extent of assessing the prospects of the applicant’s reformation. … Bail is granted on the supposition that the applicant will answer to his bail and is most certainly not granted to enable the offender to commit further offences whilst on bail. Indeed, it has often been said that the commission of offences whilst on bail is an abuse of the privilege of bail. Whether or not bail is to be regarded as a privilege or a right need not here be determined, though the weight of history is, we consider, in favour of the first view. The real point is that the commission of offences whilst on bail indicates contempt for or disregard of the system of law under which bail was granted to the offender; it suggests that the offender has small regard for the law and little intention of obeying its commands.
Furthermore, it may be said that the person who commits an offence on bail has abused or betrayed the confidence reposed in him by the tribunal which granted him bail. The fact that a crime has involved a breach of confidence or trust, eg, by a solicitor or bank manager or member of the police force, has always been regarded as a matter relevant to the question of sentence … Prima facie the quantum of sentence is dependent on the circumstances of the commission of the crime and its immediate consequences, and should not be increased by reference to events occurring after the offence has been committed. But just as conduct subsequent to the commission of the offence which indicates a clear intention to reform is a matter which the offender is entitled to have taken into account in his favour, so also conduct tending in the other direction, ie, showing that the offender is unlikely to reform, or has at least not yet reformed, is a matter relevant to the sentencing discretion, if or insofar as it suggests that to extend clemency would serve no useful purpose or that lenience is likely to be abused.[43]
[42] [1977] VR 225.
[43] Ibid at 229.
Although the Judge referred to the circumstance that Mr Perdikoyiannnis’ offences were committed while he was on parole, he did not refer to the aggravating effect of that circumstance. Further, the fact that the Judge took the same starting point for all three respondents suggests that he did not take that consideration into account.
Even if the fact that Mr Perdikoyiannis committed his offences while on parole is put to one side, the commission of the earlier offences meant that there was little scope for leniency to be extended in relation to the 21 May 2009 offences. To say this is not to imply that Mr Perdikoyiannis should be punished again for the February 2000 offences. It means only that he was not to be sentenced on the basis that the 21 May 2009 offences were the first of this kind, or an isolated, incursion into crime and so capable of attracting leniency.
In Mr Condo’s case, the commission of the offences on 7 December 2008 was also relevant to his culpability in the offences of 21 May 2009. Mr Condo had had the opportunity to reflect upon the wrongfulness of his conduct and to mend his ways. Instead, he chose to offend again in a very serious way.
Further, Mr Condo’s incursion into crime on 21 May 2009 was also relevant to the sentencing for the 7 December 2008 offences. As King CJ and Cox J pointed out in R v McInerney,[44] the commission of further offences after the offence for which the offender is being sentenced may diminish or abrogate any leniency which may be given on account of good character, and may also indicate that considerations of personal deterrence are particularly important in the sentencing for the first offence. The sentencing Judge did not refer to these considerations in his remarks concerning the sentences which he imposed on Mr Condo.
[44] (1986) 42 SASR 111 at 113.
The Judge invoked s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) in relation to all three respondents (and in relation to the two sets of offending of Mr Condo). Unfortunately, he did so without giving any indication at all of how each single sentence was derived. Differing views have been expressed in this Court as to the extent to which it is necessary or desirable for Judges, when applying s 18A, to determine individual notional sentences for the offences in question, then to determine whether those sentences should be cumulative or concurrent, and then to determine the aggregate single sentence. Cases in which statements supportive of this approach have been made include R v Major;[45] R v Gale;[46] and R v Tu.[47] The authorities also recognise that there may be some cases in which that approach is inappropriate or unnecessary. In R v Symonds[48] the Chief Justice mentioned some circumstances in which this would be so in the following passage:
The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise by imposed.[49]
[45] (1998) 70 SASR 488 at 490 per Doyle CJ; at 497 per Olsson J.
[46] (1999) 74 SASR 235 at 238 per Bleby J.
[47] (2001) 216 LSJS 297 at [16] per Martin J.
[48] [1999] SASC 217.
[49] Ibid at [22].
Other authorities have suggested that the category of situations in which it may not be necessary or appropriate to follow the approach of the Chief Justice in Major may be more extensive. Some of these authorities were summarised by Gray J in R v Copeland (No 2).[50]
[50] [2010] SASCFC 61; (2010) 108 SASR 398.
However, the overriding principle is that it is necessary for sentencing Judges to provide an adequate explanation for the sentences they impose.[51] That obligation remains true whichever approach to the application of s 18A is adopted. In this respect, I venture to repeat a passage from my reasons in R v Waugh:[52]
Whichever approach is adopted, it is necessary for the sentencing judge to provide an adequate explanation for the sentence imposed.[53] Such an explanation is intrinsic in the approach identified in R v Major. That is one of the advantages of that approach. When a judge goes directly to a single sentence, some explanation of how that single sentence is derived is still necessary. That might be given, for example, by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, and by identifying whether the judge considers that they should be served cumulatively or concurrently. Alternatively, the explanation may be given by stating a sufficient number of individual sentences so as to indicate that the judge regards any further identification of individual sentences unnecessary. This may be because the imposition of such sentences would be crushing or might lead to a sentence which did not reflect the overall seriousness of the criminality involved.
In the present case, the judge did not give any explanation at all as to the means by which he reached a starting point of 16 years before a discount of four years for the guilty pleas. In that respect the judge was, in my respectful opinion, in error.
Doyle CJ and Sulan J agreed with these remarks.
[51] Criminal Law (Sentencing) Act 1988 (SA), s 9.
[52] [2005] SASC 470 at [43]; (2005) 93 SASR 274 at 284.
[53] Criminal Law (Sentencing) Act 1988 (SA), s 9(1).
In the present case, the Judge’s omission to give any explanation of the way in which his sentences were derived created difficulties. This Court does not know how the Judge approached the fixing of his sentences. Counsel for the respondents were unable to assist. My impression is that the Judge’s omission to identify at least some of the notional individual sentences has contributed to the overall inadequacy of the s 18A sentences.
Finally, in relation to Mr Perdikoyiannis, I note that the non‑parole period of 18 months fixed by the Judge, together with 20 months served in custody before sentence, may mean that he would serve only eight months of the sentence imposed by the Judge in custody.
Re-sentence – Perdikoyiannis
In resentencing each of the respondents, this Court is required by s 340 of the CLCA to impose the sentence which should have been imposed in the first instance. This means that in resentencing, the Court is not to have regard to the principle of double jeopardy.[54] Section 340 does not, however, preclude the Court from having regard to the principle of double jeopardy when considering an application for permission to appeal, or when determining whether the appeal should be allowed.
[54] R v Saunders [2011] SASCFC 37; R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334.
In Mr Perdikoyiannis’ case, I consider that the starting point for a single sentence imposed under s 18A should be nine years. This is a higher starting point than is appropriate in the case of Messrs Condo and Peabody but is warranted by the aggravating circumstance that Mr Perdikoyiannis committed the offences so soon after being released on parole. Mr Perdikoyiannis’ criminal history also suggests that personal deterrence is particularly important in his case. The starting point is lower than that proposed by Gray J so as to take account of the material accepted by the sentencing Judge (to which I will refer shortly) which indicates that Mr Perdikoyiannis is now taking positive steps towards rehabilitation.
If I had been sentencing only for the offence of aggravated causing serious harm with intent to cause serious harm, the starting point would have been a sentence of seven years. Had individual sentences been imposed for the offences of theft and attempted theft, I would have made those sentences concurrent. They were in effect different aspects of the one offence of theft because, if Mr Peabody had been able to start the Commodore, it is probable that it would have been that vehicle, and only that vehicle, which would have been stolen.
Like the sentencing Judge, I consider it appropriate in each case to allow a substantial reduction for the pleas of guilty, even though those pleas were entered very late, ie, at the commencement of the trial. It is appropriate to give the respondents credit for their early offers to plead guilty to the offences for which they were ultimately arraigned. Had the Crown accepted those offers at the time they were first made, the arrangements for the trial would have been unnecessary. In this respect the respondents should not be disadvantaged by the attitude originally taken by the Director. As to the significance of a defendant’s early offer to plead to a lesser offence, I refer to my reasons in R v Hansen.[55] I also emphasise again that those reasons were directed to actual and clearly stated offers to plead to lesser offences, and that something less than a formal offer such as a “without prejudice” offer, a “sounding out” or an “invitation to treat” should not attract the allowance referred to in the authorities.
[55] [2011] SASCFC 10 at [19]-[38].
In the present case, the pleas of the respondents had a substantial utilitarian effect. They saved a trial which was estimated to take some eight weeks. The pleas lost some of their significance as expressions of contrition and remorse because each of the respondents maintained in the disputed facts hearing a basis for the pleas which was not ultimately accepted by the sentencing Judge. Nevertheless, I consider it appropriate that a substantial reduction be made on account of the pleas.
Accordingly, I would reduce the starting point of nine years to seven years. I would deduct from that figure the period of one year and eight months which Mr Perdikoyiannis spent in custody to the time of the Judge’s sentencing. That produces a sentence of five years and four months.
Mr Perdikoyiannis also had an unexpired period of parole to serve of two years, five months and 28 days. He became liable to serve that period on the date of the Judge’s sentencing (19 April 2011).[56] I would direct that the sentence of five years and four months commence upon the completion of his service of the unexpired period of parole. The total period to be served in custody by Mr Perdikoyiannis is therefore seven years, nine months and 28 days.
[56] Correctional Services Act 1982 (SA), s 75.
The Judge recognised that the non‑parole period which he fixed in the case of Mr Perdikoyiannis was merciful. He took into account in that respect the favourable references and expressions of support which Mr Perdikoyiannis’ friends and family had provided. The Judge accepted that Mr Perdikoyiannis had made great efforts to improve himself which had in part been recognised by the trusted employment which he had been given in Yatala Prison. The Judge said:
I accept that having spent the vast bulk of your 20 years in custody you have made a decision to turn your life around and you do have the support networks which, if embraced by you, should enable you to succeed. I am optimistic about your prospects for continued rehabilitation.
I see no reason not to take a similar view of these materials. However, I do not consider that they can justify the very merciful non‑parole period adopted by the Judge. It is to be remembered that a non‑parole period should also reflect the punitive, deterrent and preventative purposes of sentencing, and that all the considerations relevant to the fixing of the head sentence are also relevant to fixing the on‑parole period.[57]
[57] R v Creed (1985) 37 SASR 566; R v Miller (2000) 76 SASR 151.

In the circumstances I would fix a non‑parole period of four years and nine months. Had it not been for the positive nature of the materials provided in support of Mr Perdikoyiannis’ sentencing submissions, this non‑parole period is likely to have been much higher.
Re-sentence – Condo
In relation to the offences of 7 December 2008, the offence of causing harm with intent to cause harm should attract a starting point of imprisonment for four years. The offence of threatening to cause harm should attract a starting point of two years and six months. However, if I was imposing those sentences individually, I would have ordered substantial concurrency because, in many respects, the conduct comprising the second was a continuation of the first. Accordingly, in fixing a single sentence under s 18A I consider a starting point of four years and six months to be appropriate. I would reduce that starting point by 12 months to take account of Mr Condo’s pleas of guilty. This results in a sentence of three years and six months and I would order that that sentence be taken to have commenced on 5 June 2009, the date upon which Mr Condo was first taken into custody.
In relation to the offences of 21 May 2009, I would take as a starting point for a single sentence under s 18A of the CLSA a sentence of imprisonment of eight years. As in the case of Mr Perdikoyiannis, I would attribute approximately two years of that starting point to the offences of theft and attempted theft.
I would reduce that starting point to six years and four months, on account of Mr Condo’s pleas of guilty. I would direct that the sentence of six years and four months be served cumulatively upon the sentence of three years and six months.
This means that the total period to be served by Mr Condo is nine years and 10 months. I would fix a non‑parole period of five years and 10 months.
Re-sentence – Peabody
I agree with the sentence proposed by Gray J with respect to Mr Peabody. Save for indicating that the sentences for the offences of theft and attempted theft in Mr Peabody’s case would, if imposed separately, have been slightly less than those which I would have imposed on Mr Perdikoyiannis, I do not wish to add to the reasons of Gray J in relation to that sentence.
Summary
In summary, in all three cases, I would grant permission to the Director to appeal and would allow the appeals. I would set aside each of the sentences imposed by the Judge.
In the case of Mr Condo, I would impose a sentence of imprisonment of three years and six months in respect of the offences committed on 7 December 2008. I would direct that Mr Condo be taken to have commenced serving that sentence on 5 June 2009.
In respect of the offences committed by Mr Condo on 21 May 2009, I would impose a sentence of six years and four months and direct that that sentence be cumulative upon the sentence imposed for the 7 December 2008 offences. In respect of the total period to be served of nine years and 10 months I would fix a non‑parole period of five years and 10 months and direct that that non‑parole period be taken to have commenced on 5 June 2009.
In relation to Mr Perdikoyiannis, I would impose a single sentence under s 18A of the CLSA of five years and four months and direct that that sentence commence on the completion of the unexpired period of parole of two years, five months and 28 days which Mr Perdikoyiannis is to be taken to have commenced serving on 19 April 2011. In respect of the total period to be served in custody of seven years, nine months and 28 days I would fix a non‑parole period of four years and nine months.
Finally, in relation to Mr Peabody, I would impose a single sentence of imprisonment for six years and fix a non‑parole period of three years. Both the head sentence and the non‑parole period should be taken to have commenced on 5 September 2009, being the date upon which Mr Peabody was taken into custody.