ARISTIDIS v THE KING [2026] SASCA 53

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DUNLOP) DCCRM-24-027030 Applicant: PETER ARISTIDIS Counsel: MR N VADASZ - Solicitor: VADASZ LAWYERS Respondent: THE KING Counsel: MS R ANDERSON AND MS R BLUMBERG - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 12/05/2026 File No/s: SCCRM-26-013053 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. ARISTIDIS v THE KING [2026] SASCA 53 Judgment of the Court of Appeal (ex tempore) (The Honourable Justice S Doyle and the Honourable Justice David) 12 May 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE This is an appeal against sentence. The applicant pleaded guilty to the offences of: - assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) for which the maximum penalty is two years’ imprisonment (Count 1); - theft, contrary to s 134(1) of the CLCA, for which the maximum penalty is 10 years’ imprisonment (Count 2); and - attempted theft, contrary to ss 134(1) and 270A of the CLCA, for which the maximum penalty is six years and eight months’ imprisonment (Count 3). On 5 March 2026, the sentencing judge, after reducing all sentences by five per cent on account of the applicant's guilty pleas, imposed sentences of three months and 25 days’ imprisonment (reduced from four months) for Count 1, 11 months and 13 days’ imprisonment (reduced from 12 months) for Count 2, and five months and 22 days imprisonment (reduced from six months) for Count 3. The -- 1 of 7 -- applicant was also convicted of six counts of the offence of failing to comply with a bail agreement, but no further penalty was imposed for those offences. The sentencing judge made the sentences cumulative resulting in a notional head sentence of 21 months’ imprisonment. This was reduced by 22 days on account of time served in custody, and by four months for time served on home detention bail resulting in a head sentence of 16 months and eight days’ imprisonment. A non-parole period of nine months’ imprisonment was fixed. Her Honour found there was not good reason to suspend the sentence. She also declined to order the sentence be served on home detention bail. The sentence was ordered to commence on 5 March 2026. An amended notice of appeal complains that the sentence was manifestly excessive (Ground 1) and that the sentencing judge erred by imposing cumulative sentences for each offence (Ground 2) and by failing to find good reason to suspend the sentence (Ground 3). In the circumstances of this matter, grounds 2 and 3 are, in effect, particulars of the manifest excess complaint. In his written submissions, the applicant added three further grounds of appeal. They complain that the sentencing judge erred by finding that the attempted theft occurred on a separate day to the earlier offences (Ground 4); erred by deducting the time spent in custody from the head sentence only and not the non-parole period (Ground 5); and erroneously took into account uncharged acts when sentencing (presumably to aggravate or increase the sentence) (Ground 6). Held, per the Court, refusing permission on all grounds and dismissing the appeal: 1. As to Grounds 1, 2 and 3, the imposition of an immediate term of imprisonment was not unreasonable or plainly unjust. The sentences considered individually or cumulatively are not manifestly excessive or outside the permissible range for the offences or offender. 2. As to Ground 4, even accepting that there was an error by the sentencing judge as to the timing of the offence of attempted theft, this was not a material error which could have had any impact on the sentence imposed. 3. As to Grounds 5, the sentencing judge did not err in failing to deduct the applicant's time served in custody from the non-parole period. 4. As to Ground 6, the sentencing judge did not take into account uncharged conduct as an aggravating feature of the offending. Criminal Law Consolidation Act 1935 (SA) ss 20(3), 134(1), 270A, referred to. -- 2 of 7 -- ARISTIDIS v THE KING [2026] SASCA 53 Court of Appeal – Criminal: S Doyle and David JJA 1 THE COURT (ex tempore): This an appeal against sentence. The applicant pleaded guilty to the offences of: - assault 1 for which the maximum penalty is two years’ imprisonment (Count 1); - theft 2 for which the maximum penalty is 10 years’ imprisonment (Count 2); and - attempted theft 3 for which the maximum penalty is six years and eight months’ imprisonment (Count 3). 2 On 5 March 2026, the sentencing judge, after reducing all sentences by five per cent on account of the applicant’s guilty pleas, imposed sentences of three months and 25 days’ imprisonment (reduced from four months) for Count 1, 11 months and 13 days’ imprisonment (reduced from 12 months) for Count 2, and five months and 22 days’ imprisonment (reduced from six months) for Count 3. The applicant was also convicted of six counts of the offence of failing to comply with a bail agreement, but no further penalty was imposed for those offences. 3 The sentencing judge made the sentences cumulative resulting in a notional head sentence of 21 months’ imprisonment. This was reduced by 22 days on account of time served in custody, and by four months for time served on home detention bail, resulting in a head sentence of 16 months and eight days’ imprisonment. A non-parole period of nine months’ imprisonment was fixed. 4 Her Honour found there was not good reason to suspend the sentence. She also declined to order the sentence be served on home detention bail. 5 The sentence was ordered to commence on 5 March 2026. 6 An amended notice of appeal complains that the sentence was manifestly excessive (Ground 1) and that the sentencing judge erred by imposing cumulative sentences for each offence (Ground 2) and by failing to find good reason to suspend the sentence (Ground 3). In the circumstances of this matter, grounds 2 and 3 are, in effect, particulars of the manifest excess complaint. 7 In his written submissions, the applicant supplemented these grounds with three further grounds of appeal. They complain that the sentencing judge erred by finding that the attempted theft occurred on a separate day to the earlier offences 1 Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). 2 Contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA). 3 Contrary to s 134(1) and s 270A of the Criminal Law Consolidation Act 1935 (SA). -- 3 of 7 -- [2026] SASCA 53 The Court 2 (Ground 4); erred by deducting the time spent in custody and on home detention from the head sentence only and not the non-parole period (Ground 5); and erroneously took into account uncharged acts when sentencing (presumably to aggravate or increase the sentence) (Ground 6). 8 For the reasons which follow, we refuse permission on all grounds and dismiss the appeal. Circumstances of the offending 9 The victim, Mr Erik Kariuki, was the owner of a diamond trading business called Kariuki Diamonds. The general manager of the business was Ms Georgina Woodman. The applicant had known Ms Woodman for many years prior to the offending, and through Ms Woodman met the victim. 10 In June 2023, the applicant came to a business arrangement with the victim whereby he agreed to pay the victim $70,000.00 to purchase some diamonds at a wholesale price and on-sell those diamonds for a profit. The applicant expected a return on his investment within three months, although on the victim’s account this did not form part of their agreement. The victim obtained three diamonds using the applicant’s money, but they were not on-sold for a profit within three months. After a further three months, the applicant contacted the victim and told him that he now owed him $140,000.00. 11 On 29 January 2024, the applicant went to the victim’s home, entered his bedroom and demanded money. The victim was in bed and naked at the time. The applicant struck the victim with an open hand to the face (Count 1). The applicant took the victim’s keys and mobile telephone (uncharged conduct). He demanded that the victim accompany him to a bank. The applicant then went with the victim in the victim’s car to the bank where he compelled the victim to withdraw money from several of his accounts. The victim handed over $1,773.00 to the applicant (Count 2). 12 The applicant then drove the victim to the victim’s work office where the applicant demanded that he open the safe. The victim retrieved two of the three diamonds purchased with the applicant’s money which the applicant retained ‘as collateral’. The third diamond was not kept in the safe, but off-site. 13 Later that evening, at about 11:00pm, the applicant used the victim’s mobile phone to access the victim’s bank accounts. He transferred $7,300.00 from the victim’s account to Ms Woodman’s account. He contacted Ms Woodman and asked her to transfer the money to the applicant, but she refused to do so (Count 3). The applicant’s personal circumstances 14 The applicant was 46 years old at the time of sentence. 15 He was convicted in 2019 of the offence of cultivating a commercial quantity of a controlled plant for which he was sentenced to imprisonment for three years, -- 4 of 7 -- [2026] SASCA 53 The Court 3 seven months and two weeks suspended upon the applicant entering into a good behaviour bond for three years with supervision. It was not alleged that he had breached the suspended sentence bond. 16 The applicant had encountered some difficulties in his childhood having witnessed domestic violence by his father towards his mother. However, he completed year 12 at the age of 16, and he has been gainfully employed since that time or run his own businesses. The sentencing judge received various references as to his good character. The applicant is no longer married but has a close relationship with his two daughters and prior to his incarceration provided care to his elderly mother. 17 The applicant suffers from anxiety and depression, hypertension and an ‘end stage’ kidney disease which has left him with one functioning kidney. 18 The applicant expressed remorse for his offending. Manifest excess – Grounds 1, 2 and 3 19 We do not consider that the sentences individually or cumulatively are manifestly excessive or outside the permissible range for the offences or offender. While the assault inflicted on the victim was not the most egregious example of an application of force, it was attended by other serious features. Most significantly, the offence was committed in the victim’s own home, indeed his bedroom. Bearing in mind the circumstances in which the assault occurred, the sentence imposed was moderate. 20 Further, the offence of theft involved the applicant demanding the victim travel with him to the bank to withdraw moneys and was attended by a persistence. At the very least, this was not a spontaneous incident but rather involved some planning and the whole incident occurred over several hours. Moreover, both offences of theft and attempted theft involved not insignificant sums of money. Further, sentences imposed by the courts must deter persons from taking the law into their own hands. We consider that the sentences imposed for Counts 2 and 3 were not manifestly excessive and properly met the sentencing objectives of both general and personal deterrence. 21 As to the question of accumulation and concurrency, while it was certainly open to the sentencing judge to order some partial concurrency, we do not consider it was an error to not do so and to accumulate the sentences. While the offences were connected in time and circumstance and motivated by common grievances, each offence can be properly characterised as a separate incursion into crime. As the sentencing judge noted, there were various opportunities between the commission of each offence for the applicant to reflect and desist. More fundamentally, standing back and considering the ultimate sentence imposed, we do not consider that it was disproportionate to the offending considered in its entirety. Whilst it would have been preferrable had her Honour made express -- 5 of 7 -- [2026] SASCA 53 The Court 4 reference to her reason for accumulating the sentences, her Honour mentioned the relevant considerations, and we do not consider her Honour fell into error. 22 We also consider that the imposition of an immediate term of imprisonment was not manifestly excessive. It was open to the sentencing judge to decline to suspend the sentence. The offending was serious for the reasons already outlined. While it may be accepted that there were aspects of the applicant’s personal circumstances which excited some sympathy, the applicant was not a first offender, and he had already received the benefit of a suspended sentence yet re-offended. The imposition of an immediate term of imprisonment was not unreasonable or plainly unjust. Factual errors – Ground 4 23 Even accepting that there was an error by the sentencing judge as to the timing of Count 3, this was not a material error which could have had any impact on the sentence imposed. Whether or not the offence attempted theft at 11:00pm on the same evening as Counts 1 and 2, or on the following morning, as the sentencing judge seems to have assumed, it was still a separate incursion into crime whereby the applicant had time to reflect on his earlier unlawful actions and desist. Any error in this regard was not material. Failure to deduct the time served in custody from the non-parole period – Ground 5 24 As to Ground 5, it is usual practice to give a defendant full credit for the time spent in custody. When giving credit, the sentencing judge has a discretion whether to do so by reducing the sentence or backdating the sentence. However, at least when the time spent in custody is continuous, the preferable course is to backdate the head sentence and non-parole period to the day on which the defendant was taken into custody, rather than to reduce their length, to give the defendant full credit for the time spent in custody. 25 Where it is not possible to backdate a sentence, and it is necessary to give a defendant credit for time served in custody, it is preferable to impose a head sentence and a non-parole period and then reduce both for time served. This is to ensure that the applicant in fact receives day for day credit for time served in custody and that the process is transparent. 26 In this case, after reducing the head sentence for time served and time spent on home detention bail, the sentencing judge immediately fixed the non-parole period. It is unlikely that her Honour would have overlooked the time served in custody and on home detention bail when fixing the non-parole period, particularly given that the non-parole period consisted of a low proportion of the head sentence (at 55 per cent). 27 Assuming the sentencing judge intended to fix a ‘normal’ non-parole period that was about 65 per cent of the head sentence of 21 months, this would result in -- 6 of 7 -- [2026] SASCA 53 The Court 5 a non-parole period of about 14 months. Once the head sentence and non-parole period is reduced for time served, the sentence would be comparable with the sentence imposed in this case. 28 In those circumstances, we consider that no error has been established. We would reiterate that the approach adopted by the sentencing judge is to be discouraged due to its lack of transparency. The preferable approach is to backdate the sentence or fix the head sentence and non-parole period and then deduct the time served in custody and on home detention from both. Applicant’s fear for his safety, and at times his life – Ground 6 29 As to the applicant's contention that the sentencing judge erroneously took into account that the victim was ‘fearful for his safety, at times his life’, we consider this was not uncharged conduct which aggravated the offending or could have been the subject of a separate charge but was rather a reflection of the impact of the offending on the victim arising from the charged conduct. There is nothing to suggest the sentencing judge erroneously treated this material as an aggravating feature. Orders: 30 Leave is granted to amend the notice of appeal to add Grounds 4, 5 and 6. 31 We refuse permission on all grounds and dismiss the appeal. -- 7 of 7 --