Director of Public Prosecutions v Konstanios Theodorellos

[2010] VSCA 21

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.  768 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS	Respondent
	v
KONSTANIOS THEODORELLOS	Applicant

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JUDGES:	BUCHANAN and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 January 2010
DATE OF JUDGMENT:	12 January 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 21

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CRIMINAL LAW – Application for bail pending appeal against sentence – Principles stated in Re Zoudi (2006) 14 VR 580 – Exceptional circumstances – Applicant likely candidate for parole at earliest possible release date – Applicant will have served whole or substantial proportion of non-parole period at time of appeal – Chance of success of appeal – Low likelihood of interference with non-parole period originally imposed – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr Brett L Sonnet	Mr Craig Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr Peter J Haag	GPZ Legal

BUCHANAN JA:

1. I will ask Bongiorno JA to deliver the first judgment.

BONGIORNO JA:

1. Konstanios Theodorellos seeks bail pending an application for leave to appeal to this Court in respect of sentences imposed upon him by the County Court for trafficking a drug of dependence and dealing with property suspected of being the proceeds of crime.

1. On 14 August last, Judge McInerney in that Court sentenced Theodorellos to 3 years’ imprisonment on the trafficking count and 3 months’ imprisonment on the uplifted summary offence, such sentences to be served concurrently.  He imposed a non-parole period of one year. 

1. Mr Theodorellos has now served 5 months of that sentence.  He has lodged an application for leave to appeal, which application will be heard by a single judge of this Court on 4 March next, by which time he will have served just under 7 months.  His proposed grounds of appeal allege specific sentencing errors on the part of the trial judge.  Such grounds concern alleged factual errors in his Honour's sentencing remarks and failure to give appropriate weight to a number of sentencing considerations.

1. A sentence imposed by a sentencing court is in no way provisional or subject to any further confirmation.  See Chamberlain v R (No. 1).[1]  It is the sentence imposed for the offence being dealt with and it stands unless and until it is set aside by this Court.  The principles upon which bail pending appeal will be granted to a person undergoing sentence were authoritatively stated by a five judge Bench of this Court in 2006 in Re Zoudi.[2]

[1](1983) 153 CLR 514, 519 (Brennan J)

[2](2006) 14 VR 580

1. In general terms, an applicant must show exceptional circumstances to be granted bail pending appeal.  In determining whether exceptional circumstances exist, the Court will consider any relevant aspects of the case, one of which might be whether by the time the appeal is heard, the prisoner will have served the whole or a substantial portion of non-parole period.  It may be accepted in this case that having regard to the prisoner's antecedents, his apparent good conduct in the unusually long period he was on bail prior to his being sentenced, and all the other circumstances surrounding this case which have been argued by Mr Haag on his behalf, that he will be a likely candidate for parole at his earliest possible release date; namely, 9 August 2010.  Thus, by the time his application for leave is dealt with, Mr Theodorellos will have served about seven-twelfths or 58 percent of his sentence.  This is one consideration going to the question of exceptional circumstances, but it is only one.  There are others

1. The chance of success on the appeal is also relevant.  Leaving aside the question of the sentence imposed for the uplifted summary offence, to be successful, the prisoner will have to convince this Court that a different sentence should have been passed on him.  But a sentence of 3 years with a 1 year minimum for trafficking cocaine, which carries a 15 year maximum, does not appear on its face to fall outside a reasonable exercise of the sentencing discretion.  Even if some error in his Honour's reasoning can be ultimately demonstrated, a conclusion which is by no means certain, there does not appear on any view of the facts in this case, to be what might be called a "killer point".  In any event, even if the prisoner was to be re-sentenced after demonstrating appellable error before this Court, it is by no means certain that there would be any interference with the non-parole period imposed originally by the trial judge.

1. In the circumstances, I am not satisfied that the applicant has established the exceptional circumstances required to warrant a grant of bail.  I would refuse the application.

1. BUCHANAN JA:  I agree that the application should be refused for the reasons stated by Bongiorno JA.  The percentage of the sentence that the applicant will serve before his appeal is heard does not constitute an exceptional circumstance.  It will be a rare case in which the prospects of success on appeal against sentence will warrant the grant of bail pending appeal.  This case is not in that category.

1. The order of the Court is that the application is refused.