Demetriou v The King

[2023] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0122

CHRISTIAN DEMETRIOU	Applicant
v
THE KING	Respondent

---

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)

---

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.

---

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:

1. 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.

1. 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.

2. 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.

3. 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.

   ---