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 non-parole period at six years the sentencing judge appropriately balanced the mitigating circumstances against the seriousness of the attack.
Criminal Law Consolidation Act 1935 s 11, s 85(2), s 85(3), s 270A, s 270A(3)(a); Criminal Law (Sentencing) Act 1988 s 18A; Summary Procedure Act 1921 s 5, referred to.
R v Tilmouth [2013] SASCFC 107; R v Peake (1996) 67 SASR 297; R v Hall [2015] SASCFC 104, discussed.
R v Teremoana (1990) 54 SASR 30; R v Collingridge (1976) 16 SASR 117; R v De Simoni (1981) 147 CLR 383; R v Wiskich (2000) 207 LSJS 431; R v Koch [2015] SASCFC 31; R v Creed (1985) 37 SASR 566; R v Shrestha (1991) 173 CLR 48, considered.

R v POSTOLOVSKI
[2016] SASCFC 69
Court of Criminal Appeal: Blue, Parker and Doyle JJ

BLUE J: I agree with Parker J.
PARKER J: The appellant has been granted permission to appeal against the non-parole period imposed by a judge of this Court. He also seeks permission to appeal against the head sentence.
The appellant was charged with one count of attempted murder, contrary to s 11 and s 270A of the Criminal Law Consolidation Act 1935, and one count of property damage contrary to s 85(3) of that Act. Following a plea of guilty to both counts, the judge applied s 18A of the Criminal Law (Sentencing) Act 1988 to impose one sentence for both offences. The judge indicated that the starting point for the head sentence was 14 years but that was to be reduced by 30% in recognition of the guilty plea entered by the appellant at committal. He was therefore sentenced to imprisonment for nine years and eight months. The non‑parole period was fixed at six years.
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.
The medical report disclosed that all of the injuries would have required considerable force. The injuries to her thigh, forearm and hand were not life-threatening. However, if the colonic injury had been left untreated it had the potential to cause faecal peritonitis and death.
The victim impact statement disclosed that Mrs Postolovska and her two children suffered from anxiety and depression following the attempt on her life. She had scars and the hand injury prevented her from working. Her doctor had advised her that she would be permanently disabled by this injury. She also suffered pain from her leg injury.
The appellant’s personal circumstances
The appellant was aged 47 years at the time of the offences.
A psychiatric report prepared by Dr Jules Begg recorded the appellant’s life history. His father was killed in an accident when he was young. The family were very poor. At the age of 18 years he was conscripted into the Yugoslav army for 12 months. While serving in Serbia he was severely beaten by fellow soldiers. Thereafter, his behaviour was disturbed for about two years. He had bad memories of the attack, drank alcohol to excess and was very angry and frequently violent.
The appellant found it difficult to adjust to life in Australia after emigrating in 1999. He became depressed and began drinking again. After losing his licence for a drink driving offence in 2001 he stopped drinking for nine years. In 2014 he returned to Europe to visit his family. There was some tension with his mother and brother. He then resumed drinking alcohol. In the months leading up to the offences he had been drinking about ten standard beers each day.
The appellant admitted to Dr Begg that there had been previous episodes of domestic violence and said that he had previously threatened his wife on one occasion with a knife.
Dr Begg reported that the appellant was suffering from post-traumatic stress disorder, depression and alcohol abuse. Dr Begg considered that a mental impairment defence would not be available and he was fit to stand trial. In the view of Dr Begg, the appellant’s attack on his wife could be explained on the basis of poor control over his anger through the combination of intoxication, post-traumatic stress disorder and depression.
The appellant’s blood alcohol level was tested about eight hours after the incident. At that time his blood alcohol reading was 0.113%. A back calculation performed by Professor Jason White, a Professor of Pharmacology and the Head of the School of Pharmacy and Medical Sciences at the University of South Australia, indicated that the appellant’s blood alcohol level at the time of the incident would have been between 0.19% and 0.21%.
Professor White stated that such a blood alcohol level will have marked effects on a person’s mental state and behaviour. He considered that the appellant had considerable tolerance to alcohol. He based that view on the appellant’s long experience as a heavy drinker and from viewing the video recordings made by police at the scene of the incident, while the appellant was being conveyed to the police station and thereafter at the police station. He did not show any outward signs of intoxication soon after the incident.
After making allowance for the appellant’s drinking history, Professor White expressed the opinion that his thinking and decision-making would have been impaired by his blood alcohol level. He would have only been able to think at a relatively simple level and may have failed to perceive situations correctly and made errors of judgment. With such a blood alcohol level the appellant was likely to have been disinhibited, impulsive, risky or reckless. He may have had less than normal concern for the consequences, particularly long term consequences, of his actions. That may have resulted in aggression, particularly if there was some provocation, although an intoxicated person may perceive provocation in situations where a sober person would not.
Professor White concluded his report with the observation that there was evidence that the appellant’s actions were not simply an impulsive act that had been committed very quickly and done in such a way that he may not have fully appreciated the possible consequences. The fact that he went to obtain a second knife indicated that he had sufficient time to consider his actions and to cease any act that may have been impulsive in nature and influenced by the effects of alcohol. Soon after the incident when his blood alcohol concentration would have been little changed, the appellant had understood his actions and appreciated their consequences.
A character reference from the appellant’s employer described him as efficient, punctual, friendly and co-operative. His work was of the highest standard and he had only taken one or two days of sick leave in many years.
The appellant’s only prior conviction is for driving with an excess blood alcohol level in 2001. He was fined and disqualified from driving for 12 months.
The judge’s approach to sentencing
The judge noted that the appellant’s offending was at the higher end of the scale of seriousness for the offence of attempted murder. While he was not to be punished for conduct in respect of which he had not been convicted, her Honour noted that the conduct that had brought him before the Court was not an isolated incident during the course of his marriage to the victim. His offending was the culmination of years of alcohol-fuelled aggression and violence towards his wife. For that reason her Honour concluded that he was not entitled to the leniency that would usually be granted when sentencing a person who has no relevant criminal history, although he could not be punished for conduct of which he had not been convicted.
Her Honour noted that this Court has often stated the need for sentences for crimes committed against women in the context of domestic violence to reflect both general and personal deterrence.
Her Honour accepted that the appellant had suffered, and probably continued to suffer, from a severe form of depression accompanying his post‑traumatic stress disorder. She referred to his difficult childhood and the incident that had occurred while he was serving in the army. Her Honour also noted the appellant’s excellent work record and the fact that he was extremely remorseful for his conduct. She expressed confidence that with appropriate professional assistance he could be rehabilitated.
It was observed by her Honour that the objective seriousness of the appellant’s offending was grave, although there were also powerful mitigating circumstances including his mental state at the time of the offending and in the preceding months. He was genuinely contrite and had no other relevant offences. The victim impact statement was a sad testament to the vulnerability and hopelessness felt by the appellant’s wife who had tried to understand and forgive him for the many times that he had been violent and aggressive towards her.
Her Honour used s 18A of the Criminal Law (Sentencing) Act to impose one sentence for both offences. As I have already noted, after arriving at a starting point of 14 years imprisonment, her Honour applied a 30% discount on account of the early guilty plea so as to reduce the head sentence to nine years and eight months. The non-parole period was fixed at six years and both the head sentence and the non-parole period were backdated to 18 January 2015, being the date that the appellant was taken into custody.
The appellant’s submissions
Counsel for the appellant acknowledged that there is no sentencing standard for the offence of attempted murder. That is because of the wide variety of circumstances in which the offence can occur.[2]
[2] R v Tilmouth [2013] SASCFC 107 at [19].
Counsel submitted that the sentencing judge erred in categorising the offence at the higher end of the scale of seriousness. For that reason both the starting point of 14 years for the head sentence and the non-parole period of six years were manifestly excessive.
Amongst matters that indicated the appellant’s offending was not at the higher end of the scale of seriousness were the lack of any premeditation and the fact that the intention to kill the victim was formed while the appellant was significantly intoxicated and his decision making impaired.
Counsel accepted that the fact the appellant was under the influence of alcohol at the time of the offending was not a mitigating factor. However, the effect of alcohol upon him could be taken into account to ameliorate what the prosecution submitted were aggravating factors, being the prolonged nature of the attack and the obtaining of a replacement weapon.
Also significant to the assessment of seriousness was the fact that none of the injuries inflicted upon the victim were immediately life-threatening, if appropriately treated. The decision of this Court in R v Teremoana establishes that the degree of harm caused to the victim will be a relevant consideration in sentencing.[3] Counsel also drew support for that proposition from the extensive comparative table of attempted murder sentences that had been provided to the Court in R v Tilmouth.[4]
[3] (1990) 54 SASR 30, Cox J at 38, Jacobs J agreeing.
[4] [2013] SASCFC 107 at [19].
Counsel also submitted that the starting point of 14 years strongly indicated a possibility that the appellant was being punished for domestic violence offences for which he had not been convicted.[5]
[5] R v De Simoni (1981) 147 CLR 383.
Counsel further submitted that the mental health problems identified by Dr Begg required general deterrence to be treated as of lesser importance than might otherwise have been the case.[6]
[6] R v Wiskich (2000) 207 LSJS 431.
In relation to the non-parole period counsel referred to the observation by Bray CJ in R v Collingridge that:[7]
... the Parole Board is in a much better position than the Court to estimate the effect of imprisonment on the offender and to the extent to which release under supervision will promote his prospects of rehabilitation.
[7] (1976) 16 SASR 117 at 126.
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.
The more recent decision in R v Hall is of greater assistance, albeit that the offence to which the appellant pleaded guilty was aggravated assault causing serious harm with intent to cause serious harm.[15] The maximum penalty for that offence is 25 years imprisonment.
[15] [2015] SASCFC 104.
The appellant and the victim had a long history of drinking heavily together and arguing. After a prolonged drinking session the appellant told a friend that she would stab the victim. Soon after, she went to the victim’s home with a large concealed knife. She stabbed the victim seven times while he tried to escape. He suffered extensive injuries, multiple organ failure and septicaemia. Dr White estimated that the appellant’s blood alcohol had been 0.305% at the time of the offence. His evidence about the effect of the blood alcohol content was very similar to that in the present matter.
The appellant in Hall had a history of severe alcoholism. When a teenager she had been sexually assaulted by a relative and had been raped more recently. She suffered from multiple symptoms of post-traumatic stress disorder, was remorseful and unlikely to offend again.
The sentencing judge in Hall began with a starting point of 12 years imprisonment and reduced that to eight years and six months on account of the appellant’s guilty plea. All three members of the Court of Criminal Appeal agreed that the judge had not erred in imposing the head sentence.[16] Kourakis CJ and Gray J held that the non-parole period of five years was manifestly excessive and reduced it to four years.[17] Stanley J would have dismissed the appeal in relation to the non-parole period.[18]
[16] Ibid, Kourakis CJ at [37], Gray J at [55] and Stanley J at [58].
[17] Ibid, Kourakis CJ at [38], Gray J at [56].
[18] Ibid at [64].
An appeal against the sentence and the non-parole period imposed for attempted murder came before this Court in R v Tilmouth.[19] The appellant was aged 19 years and the victim in his early 30s at the time of the offence. They were involved in a sexual relationship that the victim regarded as consensual. The appellant apparently held a different view. Prior to the offence the appellant had told a friend that he wanted to kill the victim as he found him annoying. He had also made written comments to the same effect. The victim and appellant had arranged a bondage session. The appellant took a knife to the session. While the victim was handcuffed, gagged, and blindfolded, the appellant stabbed him twice to the chest and cut his neck leaving a deep wound.
[19] [2013] SASCFC 107.
Kelly J noted in Tilmouth that the sentencing considerations were complex and difficult.[20] The judge had taken into account the appellant’s youth and the psychiatric evidence. His confusion about his sexual identity and the predatory behaviour of the victim towards him had to be balanced against the inherent seriousness of the offence and the failure of the appellant to provide any real explanation for his conduct.[21] Kelly J concluded that the starting point of 14 years was well within the available range as was the non-parole period of seven years. Kourakis CJ and Peek J agreed.[22]
[20] Ibid at [27].
[21] Ibid at [23]-[24].
[22] Ibid at [33].
Discussion
I reject the appellant’s submission that his conduct was not at the higher end of the scale of seriousness for the offence of attempted murder. The stabbing of his wife using a large knife multiple times with considerable force was plainly a vicious and concerted attack. He persisted in the attack by obtaining a second knife after the first broke and then pursuing his wife to the neighbour’s car where he continued his efforts to kill her. His attack was made in the context of a history of many years of domestic violence, mostly alcohol fuelled.
I also reject the appellant’s contention that by adopting the starting point of 14 years the judge was punishing the appellant for domestic violence offences of which he had not been convicted contrary to the principle stated in De Simoni. First, 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. Secondly, there were sound reasons for her Honour to fix the starting point at 14 years. Thus, there is no basis to infer that the appellant was being punished for his history of domestic violence.
It was submitted on behalf of the appellant that his mental health problems require general deterrence to be treated as of lesser importance than it might otherwise have been. However, as I stated in R v Koch (Kourakis CJ and Bampton J agreeing), general deterrence is a very important consideration in sentencing for offences of violence committed in the course of domestic disputes.[23] There is also a need to deter offences of violence committed under the influence of alcohol.[24] The fact that the appellant was intoxicated at the time of the offence is not, in itself, strongly mitigatory.[25]
[23] [2015] SASCFC 31, Parker J at [42], Kourakis CJ and Bampton J agreeing.
[24] R vHall [2015] SASCFC 104, Kourakis CJ at [33] and Stanley J at [63].
[25] Ibid.
The starting point of imprisonment for 14 years was within the range reasonably available to the sentencing judge. That starting point was certainly not inconsistent with the sentences in Peake, Hall and Tilmouth, albeit the circumstances in each case varied significantly. I would refuse permission to appeal against the head sentence of imprisonment for nine years and eight months.
Consideration of the non-parole period
I turn to the fixing of the non-parole period. It has not been contended that the sentencing judge made any process error when she determined the non-parole period. The appellant asserts that in all the circumstances the non-parole period of six years was manifestly excessive, ie there was an outcome error.
In R v Creed King CJ (Cox and Olsson J agreeing) held that:[26]
The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community’s sense of justice ... [T]he non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.
[26] (1985) 37 SASR 566 at 568.
In R v Shrestha Deane, Dawson and Toohey JJ observed that all the considerations which are relevant to fixing the head sentence are also relevant when a sentencing judge considers eligibility for parole.[27]
[27] (1991) 173 CLR 48 at 68.
While it is commonplace in sentencing appeals to refer to the non-parole period as a percentage of the head sentence, the preceding observations made by this Court and the High Court make clear that the setting of the non-parole period must not be approached as a purely mathematical exercise.
The sentencing judge took into account all relevant considerations, including the appellant’s personal circumstances, in fixing the non-parole period. She referred to his severe depression and post-traumatic stress disorder, the assault he had endured while serving in the Yugoslav army, his excellent work record, his remorse and her Honour’s assessment that he would be able to be rehabilitated. Her Honour characterised these various matters as being powerful mitigating circumstances.
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.