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DPP v Candaza

DPP v Candaza

Case [2003] VSCA 91 25 June 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS
v.
JOHN CANDAZA PETER KOUFOMANOLIS ANDREW MAVROS and MICHAEL NUNEZ	No. 5 of 2003 No. 4 of 2003 No. 2 of 2003 No. 3 of 2003

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JUDGES:	WINNEKE, A.C.J., PHILLIPS and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 June 2003
DATE OF JUDGMENT:	25 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 91

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Criminal law – Sentence – Director’s appeals – Young offenders – Armed robbery – Whether non-conviction disposition manifestly inadequate – Very sound prospects of rehabilitation – Pleas of guilty – Offending out of character – Personal circumstances of respondents – Sentences not manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W.E. Morgan-Payler, Q.C. and Mr R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Respondent Candaza	Mr O.P. Holdenson, Q.C. and Mr R.F. Thyssen	Director, Victoria Legal Aid, Dandenong
For the Respondent Koufomanolis	Mr P.F. Tehan, Q.C. and Mr S. Gardner	Galbally & O’Bryan
For the Respondent Mavros	Mr D.J. Ross, Q.C. and Ms C. Randazzo	Victoria Legal Aid
For the Respondent Nunez	Mr P.G. Priest, Q.C. and Mr M.J. Croucher	Grubissa White

WINNEKE, A.C.J.:

I invite Chernov, J.A. to give the first judgment in this matter.

CHERNOV, J.A.:

On 11 December 2002, the respondents, Peter Koufomanolis (“Koufomanolis”), Andrew Mavros (“Mavros”), Michael Nunez (“Nunez”) and John Candaza (“Candaza”), whose ages then ranged between 18 and 21 years, pleaded guilty in the County Court at Melbourne to two counts of armed robbery contrary to s.75A of the Crimes Act 1958 that were committed by them on 25 May 2002. The maximum penalty for the offence of armed robbery is 25 years' imprisonment or 3,000 penalty units or 500 hours of community work over a two year period. The respondent Koufomanolis admitted 34 convictions (19 convictions for damaging property with intent and 15 convictions for wilful trespass) arising from one appearance before the Children’s Court at Dandenong on 10 November 2000. The offences essentially consisted of the respondent unlawfully entering premises and painting graffiti on train carriages. He was then aged 16 years and was released on a good behaviour bond for 12 months in the sum of $250. Mavros admitted one conviction for theft on 17 October 2001 at Dandenong Magistrates' Court for which he was released on a good behaviour bond for a period of 12 months. The offence, which was apparently committed in October 2001, involved taking fishing lines from the local K Mart store.

After hearing a plea in mitigation of sentence on 11 and 12 December 2002, the learned sentencing judge sentenced each respondent, on 13 December 2002, in respect of the first count, to a community-based order for a period of two years, without conviction, with a special condition to perform 400 hours of community work and, in respect of the second count, the judge imposed a fine of $3,000, the payment of which was stayed for 18 months. Because Mavros had, by committing the offences…

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 Candaza

Details

AGLC: DPP v Candaza [2003] VSCA 91
Case: [2003] VSCA 91
Decision Date: 25 June 2003

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against sentences imposed on two young offenders who had pleaded guilty to armed robbery. The Court of Appeal considered whether the sentences were manifestly inadequate. The respondents, both of whom had no prior criminal history, had committed the offence while under the influence of drugs and alcohol. The trial judge had imposed a sentence of detention and training orders on each of them, a decision which the Director of Public Prosecutions sought to challenge on the basis that the sentences were manifestly inadequate and did not adequately reflect the seriousness of the offence.

The court was required to determine whether the sentences imposed were manifestly inadequate, taking into account the young age of the respondents, the fact that they had no prior criminal history, their pleas of guilty, the offending being out of character, and their very sound prospects of rehabilitation. The court also had to consider whether the sentences were proportionate to the gravity of the offence and whether they adequately reflected the need for denunciation and deterrence.

The Court of Appeal held that the sentences were not manifestly inadequate. The trial judge had considered the respondents' personal circumstances and had imposed sentences that were appropriate to the offending and took into account the respondents' prospects of rehabilitation. The court found that the sentences were proportionate to the gravity of the offence and adequately reflected the need for denunciation and deterrence. The appeals were therefore dismissed.

Orders