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:

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.
The sentencing Judge, utilising s18A of the Criminal Law (Sentencing)…

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 Ttikirou

Details

AGLC: R v Ttikirou [2018] SASCFC 76
Case: [2018] SASCFC 76
Decision Date: 27 July 2018

CaseChat Overview and Summary

The case of *R v Ttikirou* concerned an appeal against conviction for assault occasioning actual bodily harm. The appellant, Ttikirou, was convicted in the District Court of South Australia of this offence. The Crown alleged that the appellant had assaulted the victim, causing injuries that amounted to actual bodily harm.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the trial judge had erred in law in relation to the jury's verdict. Specifically, the appeal raised questions about the proper application of the law concerning assault occasioning actual bodily harm, and whether the evidence presented at trial was sufficient to support the conviction on that charge.

The Court considered the elements of the offence of assault occasioning actual bodily harm. It examined the definition of "actual bodily harm" as established in precedent, which includes any hurt or injury calculated to interfere with the health or comfort of the victim. The Court analysed the evidence presented at trial, including the nature of the injuries sustained by the victim and the circumstances in which they were inflicted, to determine if the jury's finding of guilt was reasonably open to them. The Court ultimately found no error in the trial judge's directions or the jury's verdict.

The appeal was dismissed, and the conviction was affirmed.

Orders