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Constantinou v The King

Constantinou v The King

Case [2024] VSCA 79 30 April 2024

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0205

PHILLIP CONSTANTINOU	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY, KAYE, and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2024
DATE OF JUDGMENT:	30 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 79
JUDGMENT APPEALED FROM:	[2022] VSC 513 (Lasry J)

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CRIMINAL LAW – Appeal – Conviction – Attempted murder – Interventions by trial judge during examination of principal witness – Whether interventions impermissible – Whether trial judge entered the arena – Whether interventions led to substantial miscarriage of justice – Interventions designed to clarify and elucidate important matters for jury – Leave to appeal refused – Ratten v The Queen (1974) 131 CLR 510; R v Mawson [1967] VR 205; R v Esposito (1998) 45 NSWLR 442; Nwagbo v The Queen [2021] VSCA 93, considered.

CRIMINAL LAW – Appeal – Sentence – Attempted murder, prohibited person use of firearm, prohibited person possessing firearm, two charges of possessing drug of dependence, trafficking drug of dependence, trafficking in a commercial quantity, theft of motor vehicle –Where applicant shot victim in face – Victim seriously injured – Previous convictions for serious crimes of violence – Total effective sentence of 18 years with fixed non-parole period of 15 years – Whether non-parole period manifestly excessive – Leave to appeal refused – Kumova v The Queen (2012) 37 VR 538; R v Bolton [1998] 1 VR 692; R v Tran [2006] VSCA 222, considered.

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Counsel
Applicant:		Mr S J Tovey
Respondent:		Mr P L Bourke KC
Solicitors
Applicant:	Fayman Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
KAYE JA
T FORREST JA:

The applicant was convicted by the jury empanelled on his trial on one charge of attempted murder. On his plea, he also pleaded guilty to seven charges on a separate indictment (the ‘plea indictment’), and to six related summary offences.
Following a plea presented on his behalf, the applicant was sentenced to a total effective sentence of 18 years’ imprisonment, with a non-parole period of 15 years, which sentence was comprised as follows:

Charge Offence Maximum Sentence Cumulation

Trial Indictment – L10703282A

1 Attempted murder (contrary to the common law, s 321M of the Crimes Act 1958) 25 years 16 years Base

Plea Indictment – L10703282B.1

1 Prohibited person possess a firearm (contrary to s 5 of the Firearms Act 1996) 10 years 18 months 2 months

2 Possession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981) 1 year 1 month

3 Trafficking in a drug of dependence – commercial quantity (contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981) 25 years 4 years 18 months

4 Prohibited person use a firearm (contrary to s 5 of the Firearms Act 1996) 10 years Convicted and discharged -

5 Theft (contrary to s 74 of the Crimes Act 1958

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 Constantinou v The King

Details

AGLC: Constantinou v The King [2024] VSCA 79
Case: [2024] VSCA 79
Decision Date: 30 April 2024

CaseChat Overview and Summary

The case of Constantinou v The King was heard in the Victorian Court of Appeal, where the applicant, Constantinou, appealed against his conviction and sentence for multiple serious criminal offences. The applicant was found guilty of attempted murder, using a firearm as a prohibited person, possessing a firearm as a prohibited person, possessing drugs of dependence, trafficking drugs of dependence, trafficking in a commercial quantity, and stealing a motor vehicle. The appeal focused on two primary issues: the trial judge's interventions during the examination of the principal witness and the length of the non-parole period of the applicant's sentence.

The court had to determine whether the trial judge's interventions during the witness examination were impermissible and whether they led to a substantial miscarriage of justice. The applicant argued that the judge's interventions constituted an improper entry into the arena of the trial, which could have influenced the jury's verdict. The court considered the principles established in Ratten v The Queen, R v Mawson, R v Esposito, and Nwagbo v The Queen, to assess the trial judge's conduct. The court concluded that the judge's interventions were designed to clarify and elucidate important matters for the jury and did not result in a substantial miscarriage of justice.

Furthermore, the court examined the applicant's argument that the non-parole period of his 18-year sentence was manifestly excessive. The applicant's extensive criminal history, including previous convictions for serious crimes of violence, and the gravity of the current offences, were taken into account. The court referred to Kumova v The Queen, R v Bolton, and R v Tran to assess the appropriate sentence. The court found that the sentence was proportionate to the seriousness of the crimes and did not represent a manifestly excessive non-parole period.

The court ultimately refused the applicant leave to appeal, finding that the trial judge's conduct did not result in a substantial miscarriage of justice and that the sentence imposed was appropriate given the circumstances.

Orders