R v Vassiliou - [2016] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VASSILIOU
[2016] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)
22 July 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence. The appellant appeals a sentence of three and a half years imprisonment with a non-parole period of one year and eight months imposed for one count of serious criminal trespass in a non-residential building and one count of arson. The circumstances of the offending are that in the early hours of the morning of 27 December 2012 the appellant went to a shop owned by his brother-in-law and sister and caused it to catch fire. The premises suffered damage in the region of $130,000.
The appellant appeals against the failure of the sentencing Judge to exercise the discretion to suspend the sentence of imprisonment, complaining that the Judge gave insufficient weight to the effects of the appellant's imprisonment on his family. On appeal the appellant seeks permission to adduce further evidence regarding hardship to his de facto partner and three children.
Whether the sentencing Judge erred in failing to exercise the discretion to suspend the sentence of imprisonment.
Held per Kelly J (Peek and Lovell JJ agreeing) dismissing the appeal:
1.       None of the evidence proposed to be adduced properly constitutes “fresh evidence” which this Court ought to receive.
2.       The hardship experienced by the appellant’s family is within the range of anticipated hardship which must have been appreciated by the sentencing Judge.
3.       There is no error in the approach of the sentencing Judge to the exercise of the discretion to suspend the sentence.
Criminal Law Consolidation Act 1935 (SA) s 85(1), s 169(1), referred to.
R v C (2004) 89 SASR 270; R v Hallett [2012] SASCFC 143, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"fresh evidence"

R v VASSILIOU
[2016] SASCFC 73
Court of Criminal Appeal: Kelly, Peek and Lovell JJ
KELLY J.
Introduction

The appellant, Peter Vassiliou, appeals a sentence imposed in the District Court on 30 March 2016 for the offences of serious criminal trespass[1] and arson.[2] The maximum penalties for serious criminal trespass in a non‑residential building and arson of a building are 10 years imprisonment and life imprisonment respectively. The circumstances of the offending are that in the early hours of the morning on 27 December 2012 the appellant went to the fish shop owned by his sister and brother-in-law at Hackham and caused it to catch fire. The fire caused extensive damage in the region of $130,000.
[1] Contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA).
The Judge sentenced the appellant to a period of three and a half years imprisonment with a non-parole period of one year and eight months for both offences, taking into account a 30 per cent discount for his pleas of guilty. He declined to suspend the sentence.
The appellant appeals solely against the failure of the Judge to exercise the discretion to suspend that sentence in favour of the appellant. The appellant complains that the Judge gave insufficient weight to the effects of imprisonment on the appellant’s family and seeks permission to adduce further evidence on that issue.
Background
Before dealing with the issues which arise on the appeal it is helpful to briefly set out the relevant facts and background.
The appellant pleaded guilty in the Magistrates Court to one count of serious criminal trespass in a non-residential building and to one count of arson of a building. A brief disputed fact hearing relating to the appellant’s intention when he entered the building to which he set fire was held in the District Court.
The appellant denied that he went to the shop with the intention of burning it down. During his evidence he maintained that he went to the fish shop to vandalise it out of resentment and exasperation towards his sister and brother-in-law over some family disagreements. He gained entry to the premises by using a key that he had kept after helping his brother-in-law to set up the business some time earlier and used aerosol shaving cream that he had brought with him to obscure the security cameras. The appellant claimed that the fire started when he kicked over a container of what transpired to be petrol which had been sitting on the floor at the back of the shop. The petrol leaked across the floor and under a refrigerator which caused the fire to start. The appellant denied both bringing the petrol with him, and setting it alight.
The Judge rejected the appellant’s evidence that the petrol spread across the floor when he kicked the can because the lid was either already off, or it came off. His Honour found that although he may not have had the intention to burn the premises down when he arrived at the shop, he made that decision very soon after arrival and poured the petrol on the floor. The Judge accepted that the fire started unexpectedly and quickly when the petrol came into contact with the refrigerator.
The appellant was caught up in the flames and sustained injuries to his back and legs which required hospital treatment. Nevertheless the appellant lied to the police when interviewed about the cause of his injuries and indeed, attempted to conceal his offending by setting fire to a chair in his garage to lend support to his lies.
The appellant has not made any restitution nor is he in a position to make any offer.
Approach to sentence
The Judge had the benefit of a lengthy psychological report which discussed in some detail the appellant’s prior mental health issues and his psychological state. In that report the psychologist also referred to the appellant’s stable family life with his partner of 16 years and their three children. In addition, during sentencing submissions which took place on 25 January 2016 and during further submissions after the conclusion of the disputed fact hearing on 18 March 2016, the appellant’s counsel made explicit submissions to the Judge about the appellant’s stable family life and close relationship with his children and invited the Judge to consider very carefully the effect of any term of imprisonment on the appellant’s family.
After discussing the circumstances of the offending, including his findings of fact on the disputed fact hearing, the Judge summarised the appellant’s personal circumstances. He noted the appellant’s stable relationship with his partner of 16 years, the fact that he had three sons aged 10, eight and a one year old conceived and born since the offending, and the fact that his wife does not work. The Judge concluded his remarks as follows:
This is serious offending. It involves a degree of planning. You went to the shop just before 4 o’clock in the morning. You had planned ahead to disable the security camera to hide what you were about to do. The triggers for your behaviour are slight and your behaviour entirely disproportionate. The fact that you disapproved of your brother-in-law’s treatment of your sister and their son is no reason to go and vandalise, much less burn, the shop that they both owned. Your psychological state may go some way to explain your strange behaviour but it does not excuse it.
Section 10(2) of the Criminal Law (Sentencing) Act says that paramount consideration has to be given to the need for general and personal deterrence in cases of arson. You put at risk the neighbouring shops. You are in no position to make reparation for the $130000 that you did to the shop. The maximum penalty for serious criminal trespass in a non-residence is 10 years imprisonment and for arson the maximum is life imprisonment. I will impose one prison sentence for both offences but take both into account. If it were not for your guilty pleas in the Magistrates Court I would have sentenced you to five years imprisonment. I reduce that by about 30% to three years, six months. In fixing the non-parole period I bear in mind your troubled background, including your psychological difficulties. I bear in mind your family responsibilities. I fix a non-parole period of one year eight months.
There remains the difficult question of suspension. Although you have some prior convictions and one subsequent conviction, there is no offending of this sort. You have psychological difficulties. You have a stable family life. On the other hand, this is extremely serious offending. Your dangerous behaviour was out of all proportion to the resentment that you had built up against your family. I do not find good reason to suspend the sentence. You will have to serve it. It will begin to run from today.
The appeal
Fresh Evidence
On appeal the appellant tendered two affidavits, one from the appellant’s de facto partner, Renata Daralievski, dated 26 May 2016, and another affidavit from Michelle Burckhardt dated 15 June 2016 annexing a letter from the deputy principal of the school which the appellant’s two oldest children attend.
The affidavit of the appellant’s partner describes in detail some of the behavioural issues and emotional difficulties which the children are now experiencing as a result of the appellant’s incarceration. She also refers to the financial hardship which she claims to be suffering as a result of the appellant’s imprisonment. I bear in mind that although the appellant’s wife referred to the appellant as being in receipt of an income of $800 a week from retail employment prior to his incarceration, it needs to be borne in mind that there was no issue during sentencing submissions that the appellant had been unemployed for over a year prior to sentencing. The reason for that was that he had been dismissed from his employment at Cash Converters due to a theft charge for which he was later convicted.
This is not to deny, of course, that the appellant and his family are experiencing hardship as a result of his incarceration. However, the extent of the financial difficulties referred to by the appellant’s wife does not appear to have dramatically changed solely as a consequence of his incarceration. It would appear that the appellant and his family were already in receipt of Centrelink income as a result of his dismissal from his employment and that is the genesis of the financial hardship the family is experiencing at present, even though it has been exacerbated by the appellant’s incarceration.
Nevertheless, the letter from the deputy principal of the school attended by the two of the appellant’s children does refer to the negative effects on the children’s behaviour that has been observed since their father’s incarceration. The material sought to be adduced on appeal indicates that sentencing the appellant to an immediate term of imprisonment has, regrettably, caused the appellant’s family hardship, even serious hardship. It effectively confirms that the negative consequences of immediate incarceration anticipated during sentencing submissions have indeed come to pass. However, I do not consider that any of the material filed goes beyond what was appreciated at the time of sentencing. In my view it certainly does not constitute such exceptional or extreme hardship as to justify the intervention of this Court.
Discussion
This Court has restated on a number of occasions the relevant principles to be applied when considering whether fresh evidence is to be received by an appellate court. In R v C[3] Doyle CJ said:
That survey of the case law indicates that usually evidence of events occurring after sentence is passed is incapable of demonstrating an error by the sentencing judge that would enliven the power to set aside a sentence as erroneous, in exercise of the power conferred by s 353(4) of the CLCA. However, such evidence may establish that a matter that the sentencing court treated as material is now to be seen in a new light, or has a new significance, as a result of events occurring after sentence that were not anticipated and, usually, could not reasonably have been anticipated. In such cases, because the evidence of matters occurring after the passing of sentence will throw new and significant light on a matter relied on by the sentencing court, the evidence will be admitted and can be acted on. For present purposes it is not necessary to decide whether, in a case in which evidence of facts occurring after sentence is admitted, the court must be satisfied in the light of that evidence that the sentence passed can be said to be erroneous, or whether, having admitted the evidence, the court simply reconsiders the sentence in the light of all the circumstances including the further information: see Brain (at [92]-[93]) per Doyle CJ.
[3] (2004) 89 SASR 270 at [32].
In subsequent decisions of this Court various Judges have restated those principles. In R v Hallett[4] White J said:
The limited circumstances in which, under s 359(a) of the Criminal Law Consolidation Act 1935 (SA), this Court receives fresh evidence on appeal are well known. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use before the sentencing Judge. Secondly, the evidence must be such that if given at first instance, it would probably have had an important influence on the result of the case, although it need not be decisive. Thirdly, it must be apparently credible. In the case of sentence appeals these principles can be applied with some flexibility and appellate courts will receive the fresh evidence if it can clearly be shown that the failure to receive the evidence may have the effect that an unjust sentence will be permitted to stand.
(footnotes omitted)
[4] [2012] SASCFC 143 at [105].
In a separate judgment, Gray J also summarised the relevant principles in the following way:[5]
The following rules of practice have been developed in several authorities of this Court:
-The power to receive further evidence on appeal should be exercised with caution bearing in mind that that power exists to serve the interests of justice.
-The purpose of receiving further evidence on appeal is to shed new light on facts which were before the sentencing Judge or to inform the appeal court of facts which were in existence at the time that the sentence was imposed but were unknown to the sentencing Judge.
-An adequate explanation for the failure to bring those facts to the sentencing Judge’s attention should be provided.
-The court should be satisfied that the evidence could not have been obtained with reasonable diligence for use at the trial.
-The evidence should be such that it would probably have an important influence on the result of the case. However, it need not be decisive.
-The court should not receive further evidence about events which occurred after the imposition of sentence except where such further evidence shows the true significance of facts which were in existence at the time of sentencing.
[5] R v Hallett [2012] SASCFC 143 at [35].
Applying these principles to the facts of this case I do not consider that any of the evidence proposed to be adduced from either the appellant’s partner or the deputy principal of the school properly constitutes “fresh evidence” which this Court ought to receive.
The hardship experienced by the appellant’s family is within the range of anticipated hardship which must have been appreciated by the sentencing Judge. Indeed as I previously observed, explicit submissions were made to the Judge about that issue and he referred to it twice in the course of his sentencing remarks.
The Judge clearly explained why, notwithstanding those factors, he was unable to suspend the term of imprisonment. He correctly categorised the offending as extremely serious and noted that there were aggravating circumstances surrounding the appellant’s offending including the degree of preplanning and the fact that the appellant not only endeavoured to cover up the offending by masking the closed circuit television camera in the shop, but also later lied to the police about the cause of his injuries.
Conclusion
I can find no error in the approach of the sentencing Judge to the exercise of the discretion. I would dismiss the appeal.
PEEK J. I would dismiss the appeal. I agree with the reasons of Kelly J.
LOVELL J. I would dismiss the appeal. I agree with the reasons of Kelly J.