New South Wales Court of Criminal Appeal CITATION : R v Tikas [1999] NSWCCA 83 FILE NUMBER(S) : CCA 60832/98 HEARING DATE(S) : 14 April 1999 JUDGMENT DATE : 14 April 1999 PARTIES : Regina Constantinos Tikas JUDGMENT OF : Grove J at 18; Kirby J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Hosking DCJ COUNSEL : L M B Lamprati (Crown) M C Ramage QC (Appl) SOLICITORS : R Gray (Crown) Jeffreys & Associates (Appl) CATCHWORDS : CRIMINAL LAW; Practice & Procedure; Sentence Appeal ACTS CITED : Crimes Act 1900 CASES CITED: Regina v Jurisic (1998) 101 A Crim R 259 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60192/98 GROVE J KIRBY J Wednesday 14 April 1999 REGINA v Constantinos TIKAS JUDGMENT 1 KIRBY J: The applicant, Constantinos Tikas, appeared before Hosking DCJ on 27 November 1998 for sentence. He seeks leave to appeal against that sentence. He faced charges arising out of a fire on 5 April 1991. It was said that he and a co-accused had set fire to premises, and had made a false claim against an insurance company. 2 His Honour directed a verdict of acquittal in respect of the charge of setting fire to the premises. The applicant was ultimately convicted by the jury in respect of the remaining count, that of publishing a false statement, contrary to s 178BB of the Crimes Act 1900. That is an offence which carries a maximum penalty of five years imprisonment. His Honour imposed a sentence of nine months imprisonment. 3 The notice of appeal raises two grounds. The first is that the sentence was excessive. It was said that his Honour overlooked certain relevant matters. 4 Secondly, the notice complains that his Honour was in error in refusing an adjournment to explore the applicant's suitability for an order that he serve the sentence by way of home detention. 5 Dealing with the first matter, the applicant was alleged to have joined with the co-accused in submitting a claim upon an insurance company for various items of equipment which had perished in the fire, and overstating the value of that equipment. The claim was of the order of $60,000. 6 The applicant was a person aged 49 years. He was in receipt of a disability pension. He suffered from a number of complaints which are outlined in the report which is exhibit A, of Dr Masellios of 11 December 1998, which was before his Honour. He was a person of previous good character. It was said that the offence occurred at the time of a break up of his marriage. After the break up of that marriage in 1991, or thereabouts, he lived in various boarding houses. 7 Having been charged with the offences, the trial was delayed on a number of occasions. It ultimately proceeded in 1998. That delay was a hardship, as his Honour accepted. His Honour also accepted that, in respect of the applicant, there was no need for personal deterrence. He was a person who, in his assessment, and I think accurately, would plainly not offend again. He believed, however, that the crime called for a sentence by way of general deterrence. 8 His Honour, in the context of general deterrence, said this (in a passage which refers to the applicant and his co-accused): "Their conduct was an out of character aberration and I accept the concession if that be the correct word very fairly offered by the Crown that neither prisoner stands in need of personal deterrence but in respect of all three matters the requirement for general deterrence is an important factor in determining sentence". 9 The matter was a serious offence, and his Honour rightly so regarded it. Mr Ramage QC, appearing for the applicant, has placed before us certain statistics from the Judicial Commission. They deal with offences of this type. Those statistics suggest that, in respect of all offenders, the punishment is usually something other than a prison sentence. In only 28 per cent of cases, taking the overall statistics, was a sentence of imprisonment thought appropriate. 10 In respect of persons who had no previous convictions, who pleaded not guilty, and who were of an age similar to the applicant, no individuals in the small sample of nine cases was given a prison term. It is said, upon this basis, that the sentence imposed by his Honour of nine months, was too long. For my part, with some hesitation, I am inclined to believe that the sentence was too long in all the circumstances. 11 However, if that were the only ground, one would hesitate to interfere because the sentence was arguably within the range of the sound exercise of discretion. 12 The second ground relates to the refusal to give an adjournment in respect of the home detention order. The applicant was thought unsuitable either for periodic detention, or a community service order, because of the disabilities from which he suffered. His Honour ultimately said this: "Prison will bear heavily upon both prisoners although there is the prospect and is not much more than that at the moment, that the prisoner Tikas may be able to service his sentence in due course by way of home detention". 13 Those words, no doubt, created a reasonable expectation in the applicant that he may receive such an order (cf Regina v Jurisic (1998) 101 A Crim R 259, per Sully J at 296). The applicant, when sentenced by his Honour, was in custody. On 27 November 1998, his Honour asked that Mr Tikas be assessed for a home detention order. The assessment, however, did not begin until 10 December 1998. The applicant was interviewed on 11 December 1998.. He needed to be reinterviewed because an interpreter was thought necessary. His consent was required to the proposed order. He believed that his landlady would co-operate. His landlady was interviewed. Ultimately, a report was prepared on 15 December 1998. The report sets out the changes in attitude of the landlady during the time that the home detention order was under consideration: "The residents of the address nominated by Mr Tikas, specifically the woman who owns the house where Mr Tikas lately resided, were reluctant to consent to his living there whilst on home detention. When seen on 11 December she indicated a clear refusal. However after visiting Mr Tikas on 12 December she contacted the writer and indicated she is now prepared to allow him to return there. This will necessitate all residents signing an undertaking and undergoing criminal history record checks." 14 However, the landlady ultimately changed her mind, yet again. Hence, when the matter came back before his Honour on 17 December 1998, it became necessary for the applicant to find a substitute person if he were to receive the benefit of a home detention order. 15 A substitute person was nominated, and approached. She signified her consent. However, no finality could be reached in the time available before the matter proceeded before his Honour on 17 December 1998. The suitability of the new person needed to be assessed, and her ability to provide the facilities necessary for the order itself. It was in these circumstances that counsel for the applicant sought an adjournment. 16 His Honour, with great reluctance, gave the applicant one further day. He remanded the applicant in custody until 18 December in order that the assessment of the nominated person could be undertaken. The Service, thereafter, approached that person. It prepared a report which was placed before his Honour on 18 December 1998. The report was in these terms: "Further to reports of 16 and 17 December 1998: Mr Tikas cannot be assessed as suitable at this time. The proposal for residential accommodation with Ms Barbara Furniss (Vandervhoek) has been investigated and appears to be generally suitable. Miss Furniss (Vanderhoek) has a good understanding of the requirements of the order and has expressed her consent. However the phone system at the residence is currently configured is incompatible with the requirements of our electronic monitoring equipment. Although these deficiencies appear to be rectifiable, the technical expertise to identify and establish a conforming system is not immediately available. In the absence of electronic monitoring, we are unable to assure the court of the effective monitoring of a home detention order." 17 In these circumstances, his Honour said this: "I stayed the execution of that sentence so that the prisoner could be assessed for home detention. He has been twice assessed and not assessed as suitable. Accordingly the stay of execution of the sentence is lifted and the sentence will be as I originally proposed." 18 It should be said that Friday 18 December 1998 was the last day of term. In my view, the applicant ought to have been granted an adjournment, if need be, until the commencement of term the following February. The applicant was, after all, in custody. There was no application before his Honour for bail. The suitability of Miss Furniss could then have been explored. The home detention order, were it made, would be a significantly less onerous way of completing the sentence than the sentence of imprisonment. The difficulties that arose were not of the applicant's making. First, the Service delayed two weeks before beginning its investigation of the issue. When it began looking at the matter, less than one week remained before the hearing. Secondly, the applicant had every reason to believe his landlady (with whom he had resided for four years) would co-operate. She then changed her mind several times between 11 December and 16 December, and ultimately refused. Thirdly, the applicant found a substitute. This would not have been easy, since he was in custody. However, in time available before the end of term, the Service was not able to complete its assessment of that individual. There is, in my view, no reason why the assessment should not have continued to its conclusion. That fact that it was the last day of term was not, in my opinion, a valid reason to curtail the process. I believe, therefore, that his Honour's discretion miscarried. For that reason I would give leave to appeal, and allow the appeal. 19 When one comes to re-sentence the applicant, it is necessary to have regard to the strong subjective case which was put before his Honour, which included the various disabilities which have been referred to, and the fact that there was no prospect of re-offending, as his Honour accepted. The applicant has now served four and a half months of his term. I believe that the appropriate order, in the circumstances, is that it should be a fixed term between 25 November 1998, when the applicant went into custody, and today's date. 20 GROVE J: I agree. I wish to add the following observations. I am unpersuaded that there was any error demonstrated in his Honour's coming to the conclusion that this case merited a custodial sentence. I am also unpersuaded that the sentence of nine months imprisonment was outside of the range of the sound exercise of his Honour's discretion. I am however further of the view that the decision to refuse the adjournment was unsupportable. The applicant lost a significant opportunity that he may serve the term imposed by way of home detention. That is, in accordance with the authority of the Regina v Jurisic (1998) 101 A Crim R 259, a substantially less onerous way of serving imprisonment than in prison. The applicant has been in custody for four months and twenty days. Using the language of Jurisic in reverse he has therefore served that time in circumstances substantially more onerous than they would have been had he been in home detention. 21 As Kirby J has pointed out, the applicant had a strong subjective case and his medical condition has been confirmed on the material tendered before this Court today. 22 The orders of the Court will be the application for leave to appeal is granted. The appeal is allowed. The sentence imposed in the District Court is quashed. In lieu thereof the applicant is sentenced to a fixed term of four months and twenty days to date from 25 November 1998 and to expire on 14 April 1999. The fixed term is imposed for reasons co-ordinate with those selected by the Trial Judge and bearing in mind the length of sentence and the absence of any need for supervision. 23 The applicant is ordered to be released today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.