R v Postolovski - [2016] SASCFC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v POSTOLOVSKI
[2016] SASCFC 69
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Parker and The Honourable Justice Doyle)
16 June 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - ATTEMPTED MURDER
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING STATISTICS, SCHEDULES, TARIFFS, COMPARISONS, ETC - PARTICULAR CASES
Appeal against the non-parole period and application for permission to appeal against the head sentence imposed by a judge of this Court for attempted murder and property damage. The appellant was intoxicated when he got into an argument with his wife about a domestic matter. He knocked her to the ground and stabbed her several times with a kitchen knife. The knife broke and he ran to the kitchen to obtain a second knife during which time the victim fled and locked herself in a neighbour’s car. The appellant chased after her, hitting the car several times with the knife. The victim suffered wounds to her thigh, forearm, hand and abdomen. The sentencing judge noted that the offending was the culmination of years of alcohol-fuelled domestic violence. The appellant was sentenced to 14 years imprisonment, reduced by 30% to nine years and eight months in recognition of an early guilty plea. The non-parole period was fixed at six years. Counsel for the appellant submitted that the sentencing judge erred in categorising the offence as being at the higher end of the scale. The offending was not premeditated, the injuries were not immediately life threatening and the appellant had not manifested his aggression outside of the marriage. The appellant was being punished for domestic violence offences for which he had not been convicted. He should be given the opportunity to rehabilitate himself in the community.
Held, per Parker J (Blue and Doyle JJ agreeing), dismissing the appeal against the non-parole period and refusing permission to appeal against the sentence:
1) The conduct was a vicious and concerted attack that was at the higher end of the scale of seriousness for attempted murder.
2) There is no basis to conclude that the appellant was being punished for his history of domestic violence. Her Honour expressly stated that the appellant was not to be punished for conduct in respect of which he had not been convicted. However, because of that history he was not entitled to the leniency that would otherwise usually apply when sentencing a person with no relevant criminal history.
3) General deterrence is a very important consideration in sentencing for offences of violence committed in the course of domestic disputes. There is also a need to deter offences of violence committed under the influence of alcohol.
4) The starting sentence of 14 years was within the range reasonably available.
5) In setting the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Postolovski

Details

AGLC: R v Postolovski [2016] SASCFC 69
Case: [2016] SASCFC 69
Decision Date: 16 June 2016

CaseChat Overview and Summary

The case of *R v Postolovski* concerned an appeal against the head sentence and non-parole period imposed by a judge of the Supreme Court for attempted murder and property damage. The appellant, who was intoxicated, attacked his wife with a kitchen knife during a domestic argument, causing her several stab wounds. The knife broke, and the appellant pursued his wife with a second knife, damaging a neighbour's car as she sought refuge inside. The sentencing judge noted the offending was the culmination of years of alcohol-fuelled domestic violence.

The legal issues before the court were whether the sentencing judge erred in categorising the offence as being at the higher end of the sentencing scale, and consequently, whether the head sentence of 14 years imprisonment (reduced to nine years and eight months for an early guilty plea) and the non-parole period of six years were manifestly excessive. The appellant argued that the offence lacked premeditation, the injuries were not immediately life-threatening, and his aggression had not extended beyond the marital relationship, suggesting he was being punished for unconvicted domestic violence.

The court considered the appellant's personal circumstances, including his status as a first offender, good work record, mental health issues at the time of the offence, and the sentencing judge's assessment that he was unlikely to reoffend and was contrite. These mitigating factors were weighed against the seriousness of the attack within the context of a history of domestic violence. The court found that the sentencing judge had appropriately balanced these competing considerations.

Ultimately, the court concluded that the sentencing judge did not err in fixing the head sentence and the non-parole period. Permission to appeal against the head sentence was refused, and the appeal against the non-parole period was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant contends that both the starting point for the head sentence of 14 years and the non-parole period of six years were manifestly excessive.Background The appellant and the victim, his wife Liljana Postolovska, married in Macedonia[1] in about 1990 when they were both aged 21 years. A son and a daughter were born of the relationship, in 1991 and 1995 respectively. The appellant moved to Australia with his family in 1999. After their arrival in Australia both the appellant and the victim obtained work as cleaners. They continued to work in that capacity until the occurrence of the events on 18 January 2015 that are subject of this appeal.[1] The Former Yugoslav Republic of Macedonia. The appellant first became physically violent towards the victim prior to their marriage. His physical and verbal abuse continued throughout the marriage. For much of that time the appellant drank alcohol to excess although there were also significant periods of complete abstinence. The abuse got progressively worse after the family migrated to Australia in 1999. In July 2009 the appellant was arrested for assaulting and threatening the victim. On that occasion he had held a large knife against his wife’s neck and threatened to cut her if she spoke. The victim decided that she did not want the matter to proceed to prosecution as she was financially dependent upon the appellant and needed his assistance in raising their two children who were then teenagers. While the appellant was not violent towards the victim for some months after the 2009 incident he then reverted to his past ill treatment of her. In the two years leading up to his arrest on 18 January 2015, he physically assaulted the victim on three or four occasions by grabbing her around the neck. In November 2014 he again threatened her with a knife and grabbed her by the throat. On the afternoon of Sunday 18 January 2015 the victim returned home from work. The appellant was clearly intoxicated. The victim suggested that he get assistance with his drinking problem. He then commenced to argue with her about a domestic matter. He knocked her to the ground, climbed on top of her and stabbed her several times with a large knife that he had taken from the kitchen. The knife broke and he ran to the kitchen to obtain another large knife. At that point the victim fled from the house. He chased her while holding the knife above his head. She found refuge in a neighbour’s car that was occupied by the neighbour and her daughter. They locked the car. The appellant hit the car several times with the knife causing a large scratch and damage to the rubber door seal. That is the basis for the charge of property damage. The victim suffered stab wounds to the left lower abdomen, the right thigh, the right hand and the right forearm. The stab wound to the abdomen penetrated the colon and also lacerated the wall of the stomach without penetration. Surgery was undertaken to repair the colonic injury and also the tendon and nerve damage to her hand. She was discharged from hospital after five days.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider that in setting the non-parole period at six years the sentencing judge appropriately balanced these powerful mitigating circumstances against the seriousness of the attack made by the appellant upon his wife in the context of their relationship. The period fixed was properly proportionate to the gravity of the crime and consistent with the observations made in Shrestha and Creed. Conclusion The sentencing judge did not err in fixing the head sentence and the non-parole period. I would refuse permission to appeal against the head sentence and dismiss the appeal against the non-parole period.DOYLE J: I agree with Parker J.

Ratio Decidendi

Legal Principle Established

Personal factors that suggested the non-parole period was manifestly excessive were the appellant’s status as a first offender, his good work record, the mental health problems he was suffering at the time of the offence and the recognition by the judge that he was unlikely to offend further. Apart from his behaviour within the marriage he had been law abiding and he had not manifested his aggression outside the marriage. The judge accepted that he was extremely contrite and remorseful and expressed her confidence that he would be able to be rehabilitated. As a middle-aged first offender the appellant should be given the opportunity to rehabilitate himself in the community.Consideration of sentencing The maximum penalty for the offence of property damage is imprisonment for ten years.[8] As the damage did not involve more than $2,500, this was a summary offence.[9] The focus of the submissions before the sentencing judge and on the appeal was on the offence of attempted murder.[8] Section 85(2) of the Criminal Law Consolidation Act 1935.[9] Section 5 of the Summary Procedure Act 1921. The maximum penalty for the offence of attempted murder is imprisonment for life.[10] As counsel for the appellant acknowledged, there is no sentencing standard for this offence because of the wide variety of circumstances in which it may occur. Counsel for the appellant and for the respondent provided a comprehensive table showing the sentences imposed in this State in attempted murder cases over the past forty or more years. [10] Section 270A(3)(a) of the Criminal Law Consolidation Act 1935.Comparable sentences The older cases provide little assistance, particularly those decided before the commencement on 1 August 1994 of the Statutes Amendment (Truth in Sentencing) Act 1994. There have also been significant changes in eligibility for parole. I attach much greater weight to cases decided in the Court of Criminal Appeal. Bearing those observations in mind, I have derived some assistance from several of the cases listed by counsel. The first such case was R v Peake.[11] The appellant was aged in his mid-30s and had been in a relationship with a young woman aged 16 years. A child had been born of the relationship. The woman and her child lived with her parents while the appellant resided elsewhere. There had been a history of disputation between the appellant and the young woman’s parents. He drove his car into their house, entered the property and then attacked the woman and her parents with a samurai sword that he had brought with him for that purpose. The appellant was found guilty by a jury of attempting to murder the parents. He was sentenced to imprisonment for 12 years with a non-parole period of eight years.[11] (1996) 67 SASR 297. Appeals against the conviction and the sentence were dismissed.[12] Millhouse J (with Williams J agreeing) referred to a suggestion by counsel for the appellant that after enactment of the truth in sentencing reforms the sentencing range was eight to 12 years. His Honour indicated that the respondent’s suggestion of 10 to 14 years was “closer to the mark”.[13] While Olsson J would have upheld the appeal against conviction, he held that the sentence was not manifestly excessive.[14][12] Ibid, Millhouse J at 302, Williams J agreeing.[13] Ibid.[14] Ibid at 310.