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…

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 Vassiliou

Details

AGLC: R v Vassiliou [2016] SASCFC 73
Case: [2016] SASCFC 73
Decision Date: 22 July 2016

CaseChat Overview and Summary

The appellant, R v Vassiliou, appealed a sentence imposed by the District Court for serious criminal trespass and arson. The appellant had pleaded guilty to these charges, which arose from an incident where he set fire to a shop owned by his brother-in-law and sister, causing approximately $130,000 in damage. The appeal was specifically against the sentencing judge's decision not to suspend the three-and-a-half-year prison sentence, with a non-parole period of one year and eight months.

The central legal issue before the appellate court was whether the sentencing judge had erred in exercising their discretion by failing to suspend the prison sentence. The appellant argued that insufficient weight was given to the potential hardship imprisonment would cause to his family, and sought to adduce fresh evidence on this point. The court was required to consider the relevant factors for sentencing, including the seriousness of the offence, aggravating circumstances, and the impact on the offender's family.

The appellate court, comprising Kelly, Peek, and Lovell JJ, found no error in the sentencing judge's approach. The judge had acknowledged the appellant's stable family life and close relationship with his children, as highlighted in a psychological report and submissions from counsel. However, the judge correctly categorised the arson as an extremely serious offence, noting aggravating factors such as the degree of pre-planning, the obstruction of CCTV cameras, and the appellant's subsequent lies to the police about the cause of his injuries. The court concluded that these aggravating factors justified the imposition of a non-suspended prison sentence, and that the judge had properly exercised their discretion.

Consequently, the appeal was dismissed, and the original sentence imposed by the District Court was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J PEEK J (dissent) LOVELL J (dissent)

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. I would dismiss the appeal. I agree with the reasons of Kelly J. I would dismiss the appeal. I agree with the reasons of Kelly J.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J,

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