Demetriou v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0122

CHRISTIAN DEMETRIOU	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2023
DATE OF JUDGMENT:	26 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 89
JUDGMENT APPEALED FROM:	[2022] VCC 1253 (Judge Carmody)

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CRIMINAL LAW – Leave to appeal – Sentence – Indictable offences and related summary offences – Total effective sentence of 1 year and 1 month, with 2-year community corrections order – Where indication given under Criminal Procedure Act 2009, s 281(3) – Where judge erred in imposing aggregate community corrections order – Leave to appeal granted – Appeal allowed in part.

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Counsel
Applicant:		Mr J R Murphy
Respondent:		Ms R L Harper
Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	A Hogan, Solicitor for Public Prosecutions

EMERTON P
T FORREST JA:

The applicant pleaded guilty in the County Court to four indictable offences and two related summary offences. The table below sets out the details of the sentences imposed:

Charge

Offence

Max Penalty

Sentence

Cumulation

Indictment Number L12547026

1 Knowingly deal with the proceeds of crime (contrary to s 194(2) of the Crimes Act 1958 ) 15 years’ imprisonment
1 year’s imprisonment
Base

2 Trafficking in a drug of dependence (contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981) 15 years’ imprisonment 2-year community corrections order N/A

3 Posession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981) 5 penalty units[1] 2-year community corrections order N/A

4 Posession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981) 1 year’s imprisonment[2] 2-year community corrections order N/A

Related Summary Offences

6 Possession of prohibited weapon without exemption or approval (contrary to s 5AA of the Control of Weapons Act 1990) 2 years’ imprisonment 3 months’ imprisonment 1 month

10 Committing an indictable offence whilst on bail (contrary to s 30B of the Bail Act 1977) 3 months’ imprisonment 1 month’s imprisonment N/A

Total Effective Sentence:
1 year 1 month’s imprisonment and a 2-year community corrections order

Non-Parole Period: N/A

Pre-sentence Detention Declared: 47 days

Section 6AAA Statement:
Total Effective Sentence 3 years

Non-Parole Period 2 years

Other relevant orders: Forfeiture and disposal orders
[1]See DPP v Demetriou [2022] VCC 1253, [1] (‘Reasons for Sentence’). As the sentencing judge was satisfied on the balance of probabilities that the offence related to a small quantity of cannabis and not for any purpose related to trafficking, per s 73(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981, the applicable maximum penalty was 5 penalty units.
[2]See Reasons for Sentence, [1]. As the sentencing judge was satisfied on the balance of probabilities that the applicant did not commit the offence for any purpose related to trafficking in that drug of dependence, the applicable maximum penalty was imprisonment for one year or 30 penalty units, or both.

It will be apparent that the order on charges 2, 3 and 4 for a community corrections order was an aggregate order. It was conceded by the respondent that a sentence of a community corrections order was not available on charge 3.
After an indication from the court under s 281(3) of the Criminal Procedure Act 2009, the applicant abandoned the application save and except for the ground that dealt with the clear error relating to charge 3.[3]
[3]This was ground 1 which alleged that the sentencing judge erred by imposing a community corrections order.
The appeal was allowed in part in order to correct this error. The orders of the court are as follows:
(1)The application for leave to appeal is granted on ground 1 and the appeal is allowed in part.
(2)The sentence imposed by the County Court on 5 August 2022 on charge 3 on indictment L12547026 is set aside.
(3)The appellant is convicted on charge 3 and discharged.
(4)The sentence imposed by the County Court on 5 August 2022 in respect of charges 2 and 4 is affirmed.
(5)All other orders made by Judge Carmody of the County Court on indictment L12547026 on 5 August 2022 are affirmed.
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The applicant, Demetriou, sought leave to appeal against the sentence imposed following his conviction for multiple indictable and related summary offences. The case was heard in the Court of Appeal, where the applicant argued that the judge had erred in imposing an aggregate community corrections order that exceeded the appropriate total effective sentence. The appeal centred on the interpretation and application of the Criminal Procedure Act 2009, specifically section 281(3), which governs the imposition of community correction orders. The central legal issue was whether the judge had correctly assessed the appropriate total effective sentence, including the time spent on community corrections orders, and if the imposition of an aggregate community corrections order was justified.

The court examined the applicable legal framework and the principles guiding the imposition of community correction orders. It found that the judge had indeed erred in imposing an aggregate community corrections order that extended beyond the appropriate total effective sentence. The court held that the aggregate order was not warranted under the circumstances, as it effectively extended the sentence beyond the prescribed limits. Consequently, the appeal was allowed in part, and the case was remitted to the lower court for re-sentencing in accordance with the court's findings.

In light of the findings, the Court of Appeal granted the applicant leave to appeal and allowed the appeal in part. The court directed that the applicant be re-sentenced by the lower court, ensuring that the total effective sentence, including any community corrections orders, complied with the statutory provisions. This decision underscores the importance of correctly applying statutory provisions when imposing community correction orders, ensuring they align with the total effective sentence prescribed by law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Charge	Offence	Max Penalty	Sentence	Cumulation
Indictment Number L12547026
1	Knowingly deal with the proceeds of crime (contrary to s 194(2) of the Crimes Act 1958 )	15 years’ imprisonment	1 year’s imprisonment	Base
2	Trafficking in a drug of dependence (contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981)	15 years’ imprisonment	2-year community corrections order	N/A
3	Posession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981)	5 penalty units[1]	2-year community corrections order	N/A
4	Posession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981)	1 year’s imprisonment[2]	2-year community corrections order	N/A
Related Summary Offences
6	Possession of prohibited weapon without exemption or approval (contrary to s 5AA of the Control of Weapons Act 1990)	2 years’ imprisonment	3 months’ imprisonment	1 month
10	Committing an indictable offence whilst on bail (contrary to s 30B of the Bail Act 1977)	3 months’ imprisonment	1 month’s imprisonment	N/A
Total Effective Sentence:		1 year 1 month’s imprisonment and a 2-year community corrections order
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		47 days
Section 6AAA Statement:		Total Effective Sentence 3 years Non-Parole Period 2 years
Other relevant orders:		Forfeiture and disposal orders