SIROPOULOS v Police - [2019] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SIROPOULOS v POLICE
[2019] SASC 127
Judgment of The Honourable Chief Justice Kourakis
19 July 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against the sentence of a Magistrate imposed on a conviction for assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).
The offending took place at the victim’s home, where the appellant repeatedly punched the victim in the face. The victim and the appellant had previously been in a relationship for about nine years.
The appellant was sentenced to 14 months imprisonment, which was reduced by 40 per cent to eight months and two weeks imprisonment for the appellant’s early guilty plea. The sentence was partially suspended, allowing the appellant’s release after serving four months imprisonment upon him entering into a bond to be of good behaviour for two years.
The appellant appeals against the sentence on the grounds that it is manifestly excessive and that it is manifestly unreasonable to not wholly suspend the sentence. The appellant also appealed a condition of the partially suspended sentence bond requiring him to not leave South Australia without permission.
The appellant abandoned two further grounds of appeal at the hearing. Those grounds concerned the Magistrate’s failure to order home detention on the unsuspended portion of the sentence, and the failure to consider the imposition of an intensive correction order.
Held, allowing the appeal in part:
1. There is no reasonable basis to impose on the appellant an obligation to obtain permission before going interstate.
Held, dismissing the appeal:
1. Having regard to the relative importance of general deterrence, the length of the sentence of imprisonment was not manifestly excessive.
2. The length of both the notional starting point and the actual term of imprisonment was well within the permissible range.
3. It was not unreasonable of the Magistrate to conclude that a combination of both punishment and deterrence effected by imprisonment for four months and rehabilitation over a period of 18 months optimised the sentencing of the appellant.
Criminal Law Consolidation Act 1935 (SA) s 20; Sentencing Act 2017 (SA) ss 71, 96, referred to.
Stenecker v Police (2014) 120 SASR 18, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Manifestly excessive"

SIROPOULOS v POLICE
[2019] SASC 127
Magistrates Appeal: Criminal

KOURAKIS CJ: This is an appeal against the sentence imposed on a conviction for assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The maximum penalty is three years imprisonment.
The Magistrate imposed a sentence of eight months and two weeks imprisonment, which was partially suspended allowing the appellant to be released after serving four months on entering into a bond to be of good behaviour for a period of two years. The Magistrate arrived at the sentence of eight months and two weeks by allowing…

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.

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Details

AGLC: SIROPOULOS v Police [2019] SASC 127
Case: [2019] SASC 127
Decision Date: 19 July 2019

CaseChat Overview and Summary

In the case of Siropoulos v Police, the appellant appealed against his sentence, arguing it was excessive. The appellant had committed a violent assault against his ex-partner in the presence of her teenage daughters, resulting in severe injuries to the victim. The appellant turned himself in shortly after the incident. The appeal focused on the conditions of the appellant's bond, specifically the requirement to obtain permission before leaving South Australia. The court needed to determine if the conditions of the sentence were appropriate, particularly if the obligation to seek permission before interstate travel was necessary.

The court considered whether the conditions imposed on the appellant were reasonable and necessary for his rehabilitation and public safety. The appellant argued that the requirement to obtain permission before travelling interstate was excessive, given his ties to Victoria where his family resided and where he conducted his fishing business. The court acknowledged the severity of the offence and the need for conditions to ensure the appellant's rehabilitation, but also recognised the impracticality of the requirement to seek permission for routine activities. The court concluded that while the sentence was harsh, it was not manifestly excessive, but the condition about obtaining permission to leave the state was not reasonably connected to the appellant’s rehabilitation or public safety.

The court allowed the appeal only to the extent of removing the condition requiring the appellant to obtain permission before leaving South Australia. It confirmed the other sentencing orders made in the Magistrates Court, maintaining that the overall sentence was appropriate given the circumstances of the offence and the appellant's need for rehabilitation. The court's decision underscored the importance of balancing the need for public safety with the practicalities of the appellant's life and obligations.

Orders

Orders of the court

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Background

Background to the litigation

I would not receive the further evidence. It is important that sentencing courts listen carefully to the accounts of victims about the effect of the offending on them. However, the subjective opinion of the victim of an offence as to the particular sentence which should be imposed generally carries little weight. The correspondence from LG does reveal some reason for optimism for the appellant’s rehabilitation, but it is not material which could have influenced the sentencing of the appellant.Background The appellant committed the offence on 24 November 2018 against his ex‑partner at her home and in the presence of her 15-year-old twin daughters from a previous relationship. The appellant and LG had been in a relationship for about nine years. Their romantic relationship had come to an end before November 2018 but they remained friends. During the relationship, the appellant had accused her of infidelity. The appellant, a fisherman, suspected that she was having an affair with one of his crew members. The psychological report of Dr Barth, dated 6 May 2019, put before the Magistrate by the appellant, revealed that he had also made accusations of infidelity against his previous partners. On 24 November 2018, the appellant spoke with the crew member whom he had suspected of having an affair with the victim. The crew member mentioned that the victim had regularly contacted him when she and the appellant were romantically involved. The appellant ruminated on this disclosure and came to believe that LG had indeed been unfaithful. He felt betrayed and became very angry. On the day of the offence, LG arrived home at about 12.45 pm with her 15‑year-old twin daughters. The appellant came to LG’s house uninvited. She and her daughters were in the kitchen, where the appellant approached her and repeatedly punched her in the face until she fell to the ground. Her daughters ran to a bedroom and called their aunt. Shortly after, the police arrived. By then, the appellant had already left. About half an hour later, he turned himself in at the Mount Gambier Police Station. LG was taken to the Mount Gambier Hospital and then transferred to the Royal Adelaide Hospital for further treatment due to the nature of her injuries. The injuries caused by the appellant were extensive. LG’s top teeth and gums had to be re-attached, having been torn away from the bone. She wore braces for five weeks on her top and bottom teeth. Four sinus bones were fractured and broken. LG had bruising on her face, neck and chest. A laceration on the back of LG’s head required four stitches. LG’s difficulty in eating anything substantial before her operation, and in the following weeks, caused her to lose over 10 kilograms in weight. The operation also left a three to four centimetre scar on her hairline. As at the time of writing her Victim Impact Statement, LG still had no feeling in her top gums, teeth and top lip area; her front tooth was turning black and appeared to be dying; and her hearing was limited in her right ear. LG suffered stress during the period in which she was misinformed that her right cheek bone had been re-constructed and two plates inserted and her nose was broken.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the other hand there is no reasonable basis to impose on the appellant an obligation to obtain permission before going interstate. His home is in Melbourne. His mother to whom he provides important support resides there. His brother is being treated for mental illness there. The appellant fishes in Victorian waters. Australia is one nation and there is much movement between the south east corner of this State and Victoria. There is no real connection between the condition that he obtain treatment and counselling and the obligation to obtain permission. The appellant is obliged to attend such treatment and programs as may be directed by his community corrections officer whether they be in South Australia or Victoria. A failure to do so will breach his bond. His attendance of those programs will not be assured by the condition that he obtain permission to leave the State. The appellant should be free to come and go from his own home, to help his mother as and when he sees fit, and to fish in Victorian waters without first obtaining permission.Conclusion I would allow the appeal only for the purpose of removing condition 7 of the bond. I otherwise confirm the sentencing orders made in the Magistrates Court.

Ratio Decidendi

Legal Principle Established

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