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 a reduction of about 40 per cent on a notional starting point of 14 months for the appellant’s plea of guilty.
The conditions of the bond are:
1To be of good behaviour and to comply with all of the conditions of the bond.
2To be under the supervision of a Correctional Services Officer for a period of 18 months and to obey lawful directions.
3To report within 2 working days of release from custody to the offices of the Department for Correctional Service at Mount Gambier.
4That you do not possess a firearm, ammunition or any part of a firearm
5That you submit to tests (including testing without notice) for gunshot residue.
6To attend any programs and appointments as directed, in particular to attend programs as indicated by Dr Barth in the report dated 6/5/2019.
7Not to leave the State of South Australia unless given permission to do so by my Community Corrections Officer for:
1for the purposes of fishing in Victorian waters and so long as that permission will not interfere with any directions in relation to rehabilitation and
2for the purposes of visiting my mother and brother in Victoria.
The appeal was brought on the following grounds:
·The sentence imposed was manifestly excessive.
·The learned Magistrate ought to have wholly suspended the sentence of imprisonment.
·In the alternative to the second ground of appeal:
·The learned Magistrate either failed to consider, or misdirected herself by concluding there was no power to consider, the question of whether the appellant ought to have served the unsuspended portion of his sentence on home detention.
·The learned Magistrate ought to have permitted the appellant to serve the unsuspended portion of his sentence on home detention.
·The condition of the partial suspended sentence bond that the appellant not leave the State of South Australia without permission, in circumstances where the appellant’s family and home (when not working as a fisherman) is in Victoria and the appellant’s work involved fishing in Victorian fishing waters out of Port MacDonnell in South Australia, was in all the circumstances unreasonable.
The appellant’s written submissions revealed a further ground of appeal that the learned Magistrate erred in failing to consider the imposition of an intensive correction order. However, on the hearing of the appeal that ground was abandoned. So too were the grounds of appeal concerning home detention. I will nonetheless make brief reference to these grounds below.
The appellant also applied to adduce further evidence comprising unsolicited letters of forgiveness and support which the victim has sent to him whilst he has been in custody.
I would dismiss the appeal other than to remove the condition of the bond that the appellant obtain the permission of his community corrections officer before leaving the State.
The appellant inflicted serious injuries on his former romantic partner, LG, in a jealous rage precipitated by information which he took to confirm fears he had harboured of her infidelity. Having regard to the relative importance of general deference, the length of the sentence of imprisonment was not manifestly excessive.
An order of home detention for the unsuspended portion of the length of the sentence of imprisonment is precluded by s 71(1)(b) of the Sentencing Act 2017 (SA) (the Sentencing Act) and, by implication, by the words ‘in prison’ in the text of s 96(4) of the Sentencing Act. There is no reason to think that the Magistrate failed to appreciate that the Court was empowered to make an intensive correction order. The failure to refer to the power is explained by its manifest inapplicability to the circumstances of this case. Those grounds of appeal were therefore quite properly abandoned.
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.
LG informed the Court through her Victim Impact Statement that she was upset that the offending occurred unprovoked in her and her children’s home. The offending has taken a great toll on her self-confidence. She was also apprehensive about returning to her own home. She was horrified that her daughters had witnessed the assault and distressed that her sister and niece were the first to arrive and had to deal with the situation. Upon their return home, her twin daughters made sure every window and door was locked for the first few weeks. She has had trouble sleeping and was constantly concerned about her safety and that of her children and extended family. Some of her children needed counselling. Due to her hospitalisation and feeling low on energy, she could not participate in day-to-day errands and some family events. Her family stepped in and supported her during these occasions.
Personal circumstances
The appellant was aged 47 at the time of the offending and is now aged 48. He left school at the beginning of year 12, followed his father’s footsteps and pursued a career in professional fishing. He has now been in the fishing industry for over 30 years.
He reported that growing up in Port MacDonnell, he and his family were harassed due to their Greek background. He idolised his father, who passed away about 10 years ago, following which he experienced a lengthy period of depression. He frequently visited his mother, who resides in Victoria. She was dependent on him for his assistance in managing her affairs. The appellant also visited his younger brother as often as possible. His younger brother suffers from schizophrenia and is cared for at a psychiatric facility in Melbourne.
The appellant did not form a longer term close relationship until his early thirties because of his commitment to work. In the psychological report, Dr Barth noted that the appellant has had four intimate relationships, ‘all of which have been unstable and characterised by significant trust issues (on [the appellant’s] part)’. His fourth and most recent relationship was with the victim. He was with his previous partner for approximately 18 months. The relationship broke down when he suspected her of infidelity. The relationship ended when he was charged with assaulting her. The appellant was convicted of assault causing harm and damaging property in January 2008.
The appellant has also had numerous convictions of driving offences, including for drunk driving, and disorderly behaviour.
The appellant commenced drinking alcohol when he was aged 16 and consumption increased dramatically in his thirties, particularly after his father’s death and to numb his emotions during turbulent relationships. After issues with his liver function, he committed to extensive detoxification and rehabilitation. The appellant has not consumed alcohol in over three years. He also reported, on average, weekly use of cannabis and a desire to cease this.
The appellant continues to experience anxiety and low self-esteem. After the appellant was charged with the subject offence, he experienced anxiety and shame. As to the appellant’s physical health, he has ischaemic heart disease. A stent was inserted in August 2018. He told Dr Barth that he was on blood-thinning medication. He was also scheduled for a check-up in relation to a lung nodule in June 2019.
Dr Barth did not think that the appellant’s symptoms were sufficient to warrant a diagnosis of any mood, anxiety or adjustment disorder but suggested that he would nonetheless benefit from psychological treatment to prevent further deterioration. He opined that the appellant exhibited dysfunctional personality traits, and experienced self-doubt and feelings of inadequacy. Dr Barth noted that he projects a confident persona but when this fails, he experiences an intense emotional response. The appellant’s poor emotional awareness leads to his negative feelings rapidly escalating when he feels like he is being challenged. The appellant has undergone anger management treatment before.
In his concluding comments, Dr Barth observed that the appellant remained in the early stages of addressing his interpersonal and behavioural issues. Dr Barth reported that the appellant showed some ‘Prominent Features of Borderline Personality Disorder’. A violence risk assessment of the appellant resulted in him being identified as likely to pose a ‘Moderate-High’ risk of re-offending.
Dr Barth recommended that the appellant receive specialist anger management and violence prevention treatment; undergo a supervised detoxification program; and receive treatment for his depression and anxiety.
Submissions
The appellant’s written submissions proposed fresh evidence in the form of unsolicited cards and a letter from LG to the appellant at the Mount Gambier Prison. These were annexed as ‘JSK3’ to the affidavit of Mr John Steven Kyrimis sworn on 15 July 2019. It was submitted that the correspondence showed that LG wished to resume a relationship with the appellant; to visit him in prison; and to assist him. The nature of the ongoing relationship contemplated by LG’s correspondence is not clear. I cannot infer on the correspondence alone that she has in mind resuming the close relationship which had come to an end even before the assault. LG stated in the letter that she had not wanted the appellant to go to prison. In one card, she said ‘No Prison sentance [sic] can tear us apart’. She also described in some of the correspondence her unsuccessful attempts to visit him despite the intervention order and her efforts to change the intervention order.
In these circumstances, it was submitted on behalf of the appellant that imprisonment would more likely hinder the appellant’s rehabilitation and increase the risk of harm to the victim.
The respondent’s submissions on the ground of manifest excess is that:
In the light of the seriousness of the assault and its consequences, the un-remediated risk of further violent offending which the appellant presented, and the need to ensure that the community was protected from further violence from the appellant through both firm deterrence and rehabilitation, the sentence imposed was within the discretion of the learned Magistrate.
As to the gravity of the offending, the respondent submits that although it was not strictly domestic violence, ‘intimate partner violence such as this shares significant features with domestic violence offending’.
The respondent submits that the Magistrate used the partially suspended sentence to balance the objectives of punishment, deterrence and promoting rehabilitation. The respondent relies on the following paragraph of the decision in Stenecker v Police:[1]
[14]The option of partially suspending a sentence of imprisonment is a very useful sentencing option in that it combines the specific and general deterrent effects of a period of imprisonment with a subsequent period of rehabilitation under supervision in the community. The utility of s 38(2a) of the Sentencing Act has been much enhanced by the capacity to impose a bond which extends beyond the length of the head sentence.
[1] (2014) 120 SASR 18.
In relation to the bond condition to remain in South Australia, the respondent submitted that if the appellant were to entirely reside outside the State, practical difficulties with supervision for his rehabilitation would arise.
On the issue of the further evidence, the respondent submits that it should not be admitted in the interests of justice because a forgiving attitude does not diminish the risk of re-offending nor the need to protect the safety of the community. The respondent submits that the evidence relates to events occurring after the date of sentence and does not shed light on facts that were before the Magistrate.
Discussion
I would dismiss the ground that the sentence is manifestly excessive. The sentence is less than the midway point in the range of imprisonment for an offence against s 20(4) of the CLCA. The appellant has reoffended despite the leniency shown to him in the past. The physical injuries caused by this offence were very serious. Personal and general deterrence must be given substantial relative weight in sentencing for assaults committed by men against women with whom they are, or have been, in a relationship, particularly when in a jealous rage. It is impossible to say that the sentence was manifestly excessive. The length of both the notional starting point and the actual term of imprisonment was well within the permissible range.
The Magistrate’s decision to partially suspend the sentence also fell within a proper exercise of the sentencing decision.
The Magistrate said:
[29] I consider that the starting point for a term of imprisonment would be 14 months. Allowing for the guilty plea that has been entered, I impose a term of imprisonment of eight months and two weeks. I am not able to find good reason to fully suspend that sentence. This was too serious an assault in the circumstances that I have mentioned. The community does need to understand that violence such as this on women with whom you have been previously in a relationship when you are jealous, simply cannot be accepted and you also need to be personally deterred.
[30] I do accept the submission however that that sentence should be partially suspended. If I require you to serve part of that sentence in custody, the deterrent aspects of sentencing will be met. If I then partially suspend it, some of the issues that Mr Kyrimis has asked me to address will be factored in. One of those factors will be that you will only be unable to support your mother and brother for a lesser period of time. Another factor is that although you may not be able to fish immediately on 1 July, it will not be an extensive amount of time that you will not be able to fish and therefore lose your livelihood. Finally, I do agree with the submission that you require extensive work if the problems that you have are to be overcome. Although I do have some concerns about supervision and whether or not that can be achieved, those concerns are not such as to lead me to say that you ought not to be given the opportunity to have a partially suspended sentence.

No vitiating error by failing to take into account a relevant consideration, or having regard to an irrelevant matter, is alleged. The Magistrate had regard to all relevant matters.
I accept that the failure to suspend the entirety of the term of imprisonment delays the appellant’s rehabilitation. I also acknowledge, as did the Magistrate, that the appellant has qualities and traits which have, and will, continue to serve him well. He has a solid work ethic. He has demonstrated great self discipline in overcoming his alcohol addiction. He takes his responsibilities to his mother and brother seriously. The very fact that LG has given him emotional support whilst in prison demonstrates that she recognises that he has redeeming qualities. However, all that must be weighed against the harm inflicted on LG, and the need for personal and general deterrence.
I do not accept that the delay in commencing the appellant’s rehabilitation will necessarily frustrate it. On Dr Barth’s assessment the appellant remains at a moderate to high risk of re-offending in similar circumstances. There is no reason to discount the deterrent effect of a period of imprisonment. It was not unreasonable of the Magistrate to conclude that a combination of both punishment and deterrence effected by imprisonment for four months followed by rehabilitation over a period of 18 months optimised the sentencing of the appellant.
The proposed further evidence in the form of LG’s correspondence cannot materially affect the balance of the competing considerations. Whether or not the appellant and LG would enter into a close relationship if he were released is speculative. Nor can I be confident that it would be a positive influence on his rehabilitation, having regard to their history and the fact of the assault. I will not receive the correspondence as further evidence on the appeal.
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.