R v Ttikirou

[2018] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TTIKIROU

[2018] SASCFC 76

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Doyle and The Honourable Justice Hinton)

27 July 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM

The appellant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence and one count of aggravated causing harm with intent to cause harm.

The offending occurred when the appellant went to the victim’s house in company with another man to intimidate the victim into paying a debt allegedly owed to the appellant’s uncle. An altercation developed and the victim was injured. Approximately one month later, the appellant returned to the victim’s house and disabled a CCTV camera. The appellant was not charged or convicted of any offence relating to the disabling of the CCTV camera.

The sentencing Judge commenced with a single head sentence of four years imprisonment. After reducing the sentence for the appellant’s pleas of guilty, the sentencing Judge imposed a head sentence of three years and seven months and a non-parole period of 18 months. The sentencing Judge declined to suspend the sentence of imprisonment and also declined to order that it be served on home detention.

The appellant appeals on the ground that the sentencing Judge erred in taking into account the subsequent conduct of disabling the victim’s CCTV camera for which he was never charged or convicted as a factor which aggravated the offending.

Held per Kelly J (Doyle J and Hinton J agreeing) dismissing the appeal:

1)  The sentencing remarks are sufficiently ambiguous to raise a concern that the learned sentencing Judge may have taken into account the subsequent conduct as a factor which aggravated the offending.

2)  In exercising the discretion to resentence the appellant, it is inappropriate to interfere with the sentence imposed by the learned sentencing Judge.

Criminal Law (Sentencing) Act 1998 s 18A; Criminal Law Consolidation Act 1935 ss 24, 170 and 353; Sentencing Act 2017 s 26, referred to.
The Queen v De Simoni (1981) 147 CLR 383, applied.
R v Tranter (No 2); R v Compton (2014) 119 SASR 480.; R v Delphin (2001) 79 SASR 429, considered.

R v TTIKIROU
[2018] SASCFC 76

Court of Criminal Appeal:  Kelly, Doyle and Hinton JJ

KELLY J:

1. This is an appeal against sentence. Following pleas of guilty the appellant was convicted of one count of aggravated serious criminal trespass in a place of residence[1] and one count of aggravated causing harm with intent to cause harm.[2]

   [1] Contrary to section 170(1) of the Criminal Law Consolidation Act 1935.

   [2] Contrary to section 24(1) of the Criminal Law Consolidation Act 1935.

2. The sentencing Judge, utilising s18A of the Criminal Law (Sentencing) Act 1998[3], commenced with a single head sentence for the two offences of four years imprisonment. His Honour reduced this by 10% on account of the appellant’s early guilty pleas, imposing a head sentence of three years and seven months and fixed a non-parole period of 18 months. His Honour declined to suspend the sentence of imprisonment. The sentence was ordered to commence on the date of sentence, 9 March 2018.

   [3]    The Criminal Law (Sentencing) Act 1998 has since the date of sentence been repealed and replaced by the Sentencing Act 2017. The equivalent of the former s18A Criminal Law (Sentencing) Act 1998 is now contained in s26 Sentencing Act 2017.

3. In this appeal, the appellant contends that the learned Judge erred at law by sentencing the appellant on the basis that the subject offences had been aggravated by subsequent criminal conduct committed by the appellant, but for which he was not charged or convicted. The subsequent criminal conduct was that one month after the offences had been committed, the appellant attended at the victim’s house and disabled a CCTV camera located there.

4. The appellant contends that an affirmative finding of the error complained of would require this Court to resentence the appellant. The appellant submits that should this Court move to resentence the appellant, it ought to apply the law as it stood when the appellant was originally sentenced. The appellant contends that in the circumstances it would be appropriate for any sentence of imprisonment to be suspended or, in the alternative, be ordered to be served on home detention.

5. The appellant does not appeal on the basis that the sentence imposed was manifestly excessive. However, he contends that by erring in taking the subsequent criminal conduct into account as aggravating the subject offences, the learned Judge imposed a greater sentence than if it had not been taken into account.

6. The respondent submits that the learned Judge was entitled to consider the subsequent criminal conduct as a factor that militated against leniency in imposing sentence. The respondent submits that the Judge took the subsequent criminal conduct into account for this purpose and that there is no process error in the sentence imposed.

7. In the alternative, should this Court find an error of law, and move to resentence the appellant, the respondent submits that the sentence imposed by the learned Judge was appropriate.  Furthermore, the respondent submits that in resentencing, this Court ought to apply the law currently in force, specifically the Sentencing Act 2017.

   Circumstances of the offending.

8. For the purposes of this appeal, the circumstances of the offending are not disputed. They are as follows.

9. On 24 April 2015 the appellant and another man drove to a house in Salisbury Heights where the victim resided. The appellant and the other man went to the house with the intention of collecting a monetary debt that the appellant’s uncle had previously told the appellant was owed to him. At the time of the offending the appellant had been told and believed that the debt related to a real estate transaction, his uncle being a real estate agent. The appellant subsequently learnt that the debt related to drugs. Neither the appellant nor the other man had met the victim before.

10. Upon arrival at the residence the victim permitted the two men entry to his house. After entering the house, the appellant told the victim he was there to collect the money owed to his uncle. An argument and then an altercation developed between the two men and the victim.

11. The appellant’s trespass was accompanied by him raising his voice with the intention of assaulting the victim by putting him in fear to induce him into paying the money demanded.

12. In the course of the altercation both the appellant and the other man picked up cricket bats that were located inside the house. The victim also armed himself with a cricket bat.  The appellant struck the victim with a cricket bat to the leg a number of times.  The other man hit the victim in the head with a cricket bat, causing a laceration to his scalp. The appellant and the other man then left the house together.

13. The victim attended at the Lyell McEwin Hospital on the day of the assault. He suffered a 5 cm long full thickness laceration to his scalp. The Judge described this laceration as going “right down to the bone of his skull.” The laceration was consistent with having been inflicted by a cricket bat. The victim also suffered from two contusions to his left forearm.

14. The victim’s victim impact statement makes it clear that this was a frightening incident. It has caused him great distress. He no longer feels safe in his own home. Another person who was also inside the house at the time speaks of the distress this incident caused them in their victim impact statement.

    Procedural History

15. The appellant pleaded guilty to the charges against him on the day of trial. The factual basis for the appellant’s guilty plea was not agreed with the prosecutor prior to the appellant entering his guilty pleas.

16. Whilst there is no dispute for the purposes of this appeal regarding the factual circumstances of the offending, the facts were not entirely clear to the learned Judge at the time of sentence. During submissions there was much discussion regarding the factual basis upon which the appellant fell to be sentenced.

17. The prosecution’s evidence on the sworn declarations was that the appellant and the other man barged into the victim’s home and immediately began assaulting him. The appellant did not give evidence at the sentencing hearing. However counsel for the appellant put forward a version of events which minimised his responsibility for the offences. With some qualifications, the version put forward by the appellant was largely accepted by the learned Judge and formed the factual basis for the purposes of this appeal.

18. The sentencing Judge accepted that it was not the appellant who had hit the victim in the head causing the laceration. However, his Honour found that the appellant was responsible for this injury to the victim’s head as this was a joint criminal enterprise initiated by the appellant.

19. The sentencing Judge accepted that the appellant had not taken a weapon to the premises. The cricket bats used in the assault were already at the victim’s house. However, the appellant took the other man with him as a way of providing more capability to intimidate the victim into paying the money that was allegedly owed. The sentencing Judge noted that the appellant was a strongly built and fit young man, and the other man was “much bigger” and “very strongly built.” The victim in contrast was a much older man and, whilst big in stature, overweight and appeared unfit.

    The subsequent uncharged offending

20. Approximately one month after the offences had been committed, the appellant went back to the victim’s house and disabled a CCTV camera located there.

21. During submissions counsel for the appellant submitted that the appellant had attended the victim’s residence in a state of panic about the fact that there was a CCTV camera. He submitted that this attempt to disconnect it was simply motivated by panic in that it may have afforded him some way of not being detected for the commission of the offence. 

22. The sentencing Judge referred to the camera incident in his sentencing remarks.  I shall discuss those remarks in further detail later in these reasons.

    The personal circumstances of the appellant

23. The appellant was born 21 November 1992. He was 22 years old at the time of the offending and 25 years old when he was sentenced. The appellant was raised by his mother and late father in Adelaide. His mother is a school principal whilst his father was a teacher. He has one sister. He attended primary and high school, leaving midway through Year 12. After leaving school he began an electrical apprenticeship and continued that at several different companies.

24. The appellant’s early life was marred by domestic violence committed by his father against his mother. This is canvassed in an undated letter written by the appellant’s mother which was before the sentencing Judge. This history of domestic violence is further set out in other reference letters submitted by the appellant which were also before the sentencing Judge.

25. The appellant’s mother writes that the family experienced significant trauma due to the mental health and violent behaviour of the appellant’s father. The appellant sometimes intervened in the violence being inflicted upon his mother, but his father would then turn on him. Police were often called to the family home to investigate complaints.

26. In 2009 the appellant’s mother moved herself and her children out of the family home and away from their father. Some three months after the separation, the appellant’s father was diagnosed with oesophageal cancer. At this point the appellant reconnected with his father. The appellant, his mother and sister returned to live with their father whilst he was under palliative care. The appellant provided emotional and other support to his father until his death in 2011. During this time the appellant took time off from his apprenticeship to care for his ill father.

27. In submissions before the sentencing Judge, counsel for the appellant explained the circumstances in which he became involved in the offending.

28. After his father’s death, the appellant developed a closer relationship with his family including his uncle. The appellant’s uncle was dealing with his own personal problems at the time including a marriage breakup, unemployment and mental health issues. The appellant was concerned about his uncle’s mental state and attempted to assist him when possible. This assistance included the attempt to collect the debt that he said was owed and which led to the charges against the appellant. After learning that the debt related to drugs, the appellant cut all ties with his uncle and has not spoken with him since 2015.

29. The appellant apologised to the victim in an undated letter before the sentencing Judge. In that letter the appellant expressed remorse for his actions. He explained that he had taken steps to rehabilitate himself and that he had positive plans for the future. He wrote that the victims could be assured they were not in any further danger.

30. The sentencing Judge was provided with a considerable number of character references from the appellant’s family and friends. Each of these references spoke highly of the appellant’s generally good character, despite the charges to which he had pleaded guilty.

31. The appellant was treated as a first offender by the sentencing Judge, despite a few relatively minor street offences. Each of these offences were dealt with by good behaviour bond, conviction with no further penalty or without a conviction being recorded.

    Discussion

32. The first issue which arises on the appeal is whether the learned Judge erred by sentencing the appellant on the basis that the offending was aggravated by the subsequent conduct of the appellant, for which he has never been charged or convicted. 

33. If an error has been made, the next issue is what sentence should be imposed by this Court.  Another issue which may also arise for consideration is what applicable sentencing law applies if it is necessary to re-sentence the appellant. 

34. I shall deal with the first issue which arises, namely whether the sentencing Judge erred in taking into account subsequent conduct of the appellant for which he has not been convicted. 

35. The appellant’s complaint arises out of two passages in the sentencing remarks which appear below:

    “...  The offending is aggravated by the fact that you returned to the victim’s property on 25 May 2015, about a month later, and disabled the victim’s closed circuit television camera.  You say that you did this in a panic.  You thought it might help you to avoid detection for the April offence.  You are unable to explain how it would have helped you to do that.  You say it was not your objective to frighten the victim further.  That is highly implausible.  Whatever was your intention, however, you did frighten the victim again.  Any reasonable person would have concluded that you did so in order that, when you returned to assault him later, you would not be caught on CCTV.  That is the natural interpretation of what you went and did to his CCTV camera. 

    It is clear that the victim and his housemate were deeply traumatised by these events.  This is apparent from their victim impact statements.  Your subsequent actions deepened that trauma even further.” 

36. The appellant submitted that the passages complained of revealed that the Judge had obviously taken into account the subsequent offence in a way which breached the fundamental principle enunciated in The Queen v De Simoni.[4]

    [4] (1981) 147 CLR 383 at 389.

37. The appellant submits that the subsequent conduct of the appellant was entirely irrelevant for the purposes of sentencing him for the offences of aggravated serious criminal trespass and aggravated causing harm because of the sentencing principle that an offence cannot be aggravated by conduct which would constitute a different offence, for which an offender has never been charged or convicted of.[5] 

    [5] (1981) 147 CLR 383 at 389.

38. The respondent submitted that the passages when read in context are not indicative of error.  The respondent submits that all the sentencing Judge meant in those passages was that the appellant’s conduct on 25 May 2015 worsened the impact on the victim.  It was submitted that his Honour himself had already indicated during sentencing submissions that he well understood that the appellant was not to be sentenced for the offending on 25 May 2015. 

39. The respondent submitted that in any event, the sentencing Judge was entitled to take the subsequent conduct into account when assessing what, if any, leniency should be extended to the appellant. 

40. As this Court observed in R v Tranter (No 2); R v Compton,[6] the principle in The Queen v De Simoni[7] does not deny that there are limited ways in which other misconduct not the subject of present offending may be legitimately taken into account when sentencing.  For example, one legitimate use of the subsequent conduct here might have been in considering whether the appellant’s earlier offending could be characterised as an isolated event, thereby entitling the appellant as a first offender to some leniency.  Had the Judge made it clear that this was the basis on which he used the subsequent conduct there might not have been any basis for complaint. 

    [6] (2014) 119 SASR 480.

    [7] (1981) 147 CLR 383 at 389.

41. However, I consider that the sentencing Judge’s remarks in the impugned passages are sufficiently ambiguous as to raise doubt whether the subsequent offending was incorrectly taken into account as a positively aggravating factor.  The use of the word “aggravated” was particularly unfortunate in the context of discussing the subsequent conduct and its effect on the victim.  Despite the respondent’s submissions to the contrary, I have real misgivings that the sentencing Judge may have taken the appellant’s subsequent conduct into account as a relevantly positive aggravating factor in sentencing.  It is for this reason that I consider the appellant has successfully made out this ground of appeal. 

42. It is necessary therefore for this Court to exercise its own independent discretion and determine the appropriate sentence for the appellant. 

43. It is also necessary in the circumstances to consider whether the law which applies to the re-sentencing of the appellant is the law which stood at the time of the appellant’s original sentencing on 9 March 2018[8] or the law currently in force. The Sentencing Act 2017 came into effect on 30 April 2018 and repealed the Criminal Law (Sentencing) Act 1988. However, in view of the concession made by both counsel for the appellant and the respondent that no significantly different principles apply under the new legislation in the particular circumstances of this case, in resentencing I have not found it necessary to resolve this particular issue.

    [8]    Criminal Law (Sentencing) Act 1998.

44. Whether or not the repealed Act or the current Act applies will remain a moot point as the approach to be taken by this Court in resentencing the appellant is effectively the same under either Act.

45. The maximum penalty for the offences for which the appellant is to be sentenced provides a clear indication of the seriousness with which Parliament views this type of offending.  The maximum penalty for the offence of aggravated serious criminal trespass in a place of residence is life imprisonment.[9]  The maximum penalty for the offence of aggravated causing harm with intent to cause harm is 13 years imprisonment.[10]

    [9] Section 170(1) Criminal Law Consolidation Act 1935.

    [10] Section 24(1) Criminal Law Consolidation Act 1935.

1. There were a number of relevantly aggravating circumstances about this offending. The appellant deliberately went to the home of the victim with the other man, a well-built person, intending to intimidate the victim into paying a debt.  During the course of the altercation which followed, an assault occurred. The assault was aggravated by the use of a weapon, namely a cricket bat, to inflict quite a serious injury on the appellant.  It is not to the point which of the two assailants, whether the appellant or the other man, struck the victim on the head.  Although the sentencing Judge made it clear that he accepted that the appellant did not cause the injury to the victim’s head, I do not consider that carries much weight. The appellant carried out this offending in company with the other man and was therefore equally responsible for all of the injuries inflicted on the victim during the assault. 

2. Given these circumstances this was a serious example of this type of offending.

3. As the sentencing Judge recognised, it was a much more serious offence than the offending which occurred in the case of R v Delphin.[11]

   [11] (2001) 79 SASR 429.

4. For that reason, the starting point needed to be much higher than the starting point adopted by the Court in R v Delphin.[12] Additionally, the appellant was charged here with the further substantive offence of aggravated causing harm with intent to cause harm. That offence was committed after he entered the home of the victim.  A weapon was introduced and used to inflict the injury on the victim.

   [12] (2001) 79 SASR 429.

5. I consider that a starting point of four years for the head sentence was moderate.  It is for this reason that I would adopt the same starting point as the Judge did. 

6. There is no doubt that the appellant is entitled to a 10% discount for his guilty pleas entered on the day of trial.  Therefore the head sentence I would impose would be three years and seven months. 

7. It remains to consider the non-parole period.  The Judge at first instance imposed a non-parole period of 18 months which represented substantially less than 50 per cent of the head sentence.  That was a merciful non-parole period.  However, the appellant’s circumstances, including his relative youth and minor criminal history were undoubtedly reflected in such a low non-parole period.

8. In the circumstances, I am not minded to impose any different non-parole period to that imposed by the Judge at first instance.

9. I turn now to consider the question of whether the sentence should be suspended or any part of it served on home detention.

10. Counsel for the appellant submitted that in light of the fact that the appellant has now served three months in custody, this Court can properly suspend the balance of the sentence to be served.  In support of that submission counsel tendered a number of documents, including a letter from a manager in charge of the custodial specialist spray shop at the prison, where the appellant is in custody.  That letter speaks favourably of the appellant’s response to his duties and his reliability whilst in custody.  Given all of the circumstances and the lapse of time since the original sentence, the appellant submits that the case for suspension is even more powerful than it was at first instance.  At the very least counsel for the appellant submitted that if a suspended sentence is not available, it would nevertheless be appropriate for this Court to order that the sentence be served on home detention.

11. Once again, both counsel conceded that in considering the issue of suspension and home detention the same substantive principles apply both prior to and subsequent to the passing of the Sentencing Act 2017.

12. This Court must give effect to the need to deter violent offending of the type which occurred here and the need to protect the security of occupants in their own home.  These considerations militate against the exercise of the discretion to either suspend the sentence or make any order that the sentence should be served on home detention.

13. In summary, the offending here was very serious.  Notwithstanding the appellant’s relative youth and other mitigating personal circumstances the appellant’s offending calls for a substantive sentence.  However, for the reasons I have already explained some leniency can be afforded to the appellant in the form of a much lower than usual non-parole period.

14. For these reasons I would decline to interfere with the sentence imposed by the Judge at first instance.  Consequently I would dismiss the appeal.

    DOYLE J:

15. I would dismiss the appeal for the reasons given by Kelly J.

    HINTON J:

16. I have had the benefit of reading the judgment of Kelly J in draft for which I am grateful. 

17. The De Simoni principle was stated by Gibbs CJ thus:[13]

    … the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted.

    [13]   R v De Simoni (1981) 147 CLR 383 at 389 (Gibbs CJ), 395 (Mason and Murphy JJ agreeing); Nguyen v The Queen (2016) 256 CLR 656 at [28] (Bell and Keane JJ); [60] (Gageler, Nettle and Gordon JJ).

18. One consequence of this is that if the State wishes an offender to be punished for another offence or an aggravating fact forming an element of another offence, it must charge the offender with that offence and prove it in the normal way.[14]

    [14]   Pearce v The Queen (1998) 194 CLR 610 at [11]-[13] (McHugh, Hayne and Callinan JJ).

19. The simplicity of the De Simoni principle as stated above belies the potential complexity of its application. The second of the principle’s two limbs obviously conditions the first but it does not excise entirely from the application of the first limb all consideration of the uncharged offending. It is the precise content of the carve out contained in the second limb that occasions difficulty in the application of the principle.[15] Obiter in R v Tran & Tran[16] suggests the carve out is relatively confined and, on one view, may be considered not to preclude the use of uncharged offending in the same way as previous convictions may be used.[17] Whatever the ambit of the carve out, it clearly protects the individual from punishment for uncharged offending. No need arises in this case to consider further the limits of the protection that the second limb affords. I agree with Kelly J that in the present case the Court cannot be satisfied that the sentencing Judge did not use the evidence of the appellant’s return to the complainant’s home to disable his CCTV camera, thereby committing a property offence, contrary to the De Simoni principle. The Judge expressly refers to this conduct as aggravating the offending, suggesting that it compounded the harm caused a month or so earlier and was to be reflected in the sentence imposed for that earlier offending.

    [15]   See for example, The Queen v Reiner (1974) 8 SASR 102; R v Godfrey (1993) 69 A Crim R 318; R v Tran & Tran [2011] SASCFC 153 and R v Tranter & Compton (2014) 119 SASR 480.

    [16]   R v Tran & Tran [2011] SASCFC 153 at [28]-[30]. See also R v Tranter; R v Compton (2014) 119 SASR 480 at [47].

    [17]   Veen v The Queen [No 2] (1988) 164 CLR 465 at 477 (Mason CJ, Brennan, Dawson and Toohey JJ).

20. I agree with Kelly J for the reasons she gives that the sentencing discretion miscarried. I also agree with Kelly J for the reasons she gives that a starting point of four years imprisonment is moderate. Section 158(8) of the Criminal Procedure Act 1921 (SA), like its predecessor, s 353(5) of the Criminal Law Consolidation Act 1935 (SA), prohibits this Court from imposing a sentence of greater severity than that subject of the appeal. I make plain that in concluding that a starting point of four years imprisonment for the offending was moderate, I have not had regard to the appellant’s subsequent return to the complainant’s home and interference with the appellant’s CCTV camera.

21. I agree with Kelly J for the reasons she gives that no different non-parole period to that imposed by the sentencing Judge is warranted and that it would be inappropriate to suspend the sentence imposed or order that it be suspended and served on home detention.

22. In the result, despite the sentence being affected by error I am not persuaded that the error is such that the appellant should be re-sentenced.[18] I would dismiss the appeal.

    [18]   Criminal Law Consolidation Act 1935 (SA), s 353(4); Criminal Procedure Act 1921 (SA), s 158(7).