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DPP v Apostolopoulos

DPP v Apostolopoulos

Case [2016] VSCA 201 17 August 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0053

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
PANAYIOTIS APOSTOLOPOULOS	Respondent

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JUDGES:	WEINBERG, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 August 2016
DATE OF ORDERS:	16 August 2016
DATE OF REASONS:	17 August 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 201
JUDGMENT APPEALED FROM:	DPP v Apostolopoulos (Unreported, County Court of Victoria, Judge Quin, 7 March 2016)

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CRIMINAL LAW – Appeal – Sentence – Respondent pleaded guilty to trafficking in cocaine – Sentenced to 3-year community correction order requiring 150 hours of unpaid community work, supervision, drug and mental health assessment and treatment, and residential drug rehabilitation – Whether sentence manifestly inadequate – Compelling evidence of rehabilitation – Sentence lenient but within range – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms L A Taylor QC with Ms K Argiropoulos	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr S R Johns	Galbally & O’Bryan

WEINBERG JA
BEACH JA
McLEISH JA:

On 7 March 2016, the respondent was sentenced to a community correction order (‘CCO’) for a period of three years in respect of a charge of trafficking in a drug of dependence (cocaine). The Director of Public Prosecutions appealed against the sentence imposed on that charge on the ground that it was manifestly inadequate. At the conclusion of oral argument, the Court ordered that the appeal be dismissed, and indicated that its reasons for decision would be published in due course. These are those reasons.

Background

On 2 June 2015, the respondent was arrested and charged with offences including trafficking in, and possession of, drugs of dependence, dealing with property suspected of being the proceeds of crime, and possession of a prohibited weapon. Following a plea of guilty, he was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence
1	Trafficking in a drug of dependence — cocaine (Drugs, Poisons and Controlled Substances Act 1981 s 71AC)	15 years’ imprisonment	CCO for a period of 3 years
2	Possession of a drug of dependence — MDMA (Drugs, Poisons and Controlled Substances Act 1981 s 73)	30 penalty units or 1 year imprisonment or both	Aggregate fine of $2000
3	Possession of a drug of dependence — Cannabis L (as above)	As above
4	Possession of a drug of dependence — diazepam (as above)	As above
5	Possession of a drug of dependence — testosterone, nandrolone, trenbolone, oxandrolone (as above)	As above
7	Summary charge Dealing with property suspected of being proceeds of crime (Crimes Act 1958, s 195)	2 years’ imprisonment	Aggregate fine of $500
8	Summary charge Dealing with property suspected of being proceeds of crime (as above)	As above
11	Summary charge Possess a prohibited weapon (Control of Weapons Act 1990, s 5AA)	240 penalty units or 2 years’ imprisonment
Total Effective Sentence		Convicted and ordered to serve a CCO for a period of 3 years with 150 hours of unpaid community work…

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 DPP v Apostolopoulos

Details

AGLC: DPP v Apostolopoulos [2016] VSCA 201
Case: [2016] VSCA 201
Decision Date: 17 August 2016

CaseChat Overview and Summary

The respondent in this case pleaded guilty to trafficking in cocaine and was sentenced to a community correction order, which included a requirement to undertake 150 hours of unpaid community work, supervision, and participation in a residential drug rehabilitation program, among other things. The Director of Public Prosecutions appealed against the sentence as manifestly inadequate. The primary judge held that while the sentence was lenient, it was not manifestly inadequate. The Director of Public Prosecutions appealed the decision, arguing that the sentence was too lenient.

The court was required to determine whether the sentence was manifestly inadequate. The appeal hinged on whether the sentence imposed was lenient to the extent that it failed to adequately reflect the seriousness of the offence and to properly serve the purposes of punishment, deterrence, and rehabilitation. The court had to consider the evidence of rehabilitation and whether it was compelling enough to justify a lenient sentence.

The court held that the sentence, while lenient, was not manifestly inadequate. The judge had considered all relevant matters, including the evidence of rehabilitation. The court found that the sentence was within the range of appropriate sentences for the offence. The appeal was dismissed, and the original sentence was upheld. The court found that the sentence reflected an appropriate balance between the purposes of punishment, deterrence, and rehabilitation. The evidence of rehabilitation was compelling but did not warrant a more severe sentence.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence was appropriate and within the range of possible sentences for the offence. The evidence of rehabilitation was compelling, but the court held that it did not warrant a more severe sentence. The purposes of punishment, deterrence, and rehabilitation were adequately served by the sentence imposed.

Orders