JUDGES	WARREN CJ, MAXWELL P, ASHLEY, REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 November 2010
DATE OF JUDGMENT	17 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 350
JUDGMENT APPEALED FROM	R v Bogtstra and Karazisis (Unreported, County Court of Victoria, Judge Howie, 9 April 2010) R v Kontoklotsis (Unreported, County Court of Victoria, Judge Howie, 30 April 2010)

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CRIMINAL LAW – Appeal – Sentence – General principles – Crown appeal against sentence –Abolition by Parliament of double jeopardy as a factor to be taken into account by Court in Crown appeals against sentence – Interpretation of ss 287, 289 and 290 of the Criminal Procedure Act 2009 – Breadth of Court’s residual discretion to dismiss Crown appeals – Whether Director of Public Prosecutions’ role in ‘filtering’ Crown appeals affected by amending legislation.

CRIMINAL LAW – Appeal – Sentence – Crown appeal against sentence – Joint offenders – Unprovoked attack on restaurant patrons by three off-duty security officers – Charges of affray, recklessly cause serious injury and intentionally cause injury – Bogtstra and Kontoklotsis sentenced to terms of imprisonment of nine months and 12 months respectively to be served by way of Intensive Correction Order – Karazisis sentenced to total effective term of two years and four months’ imprisonment with non-parole period of 12 months – Whether sentences manifestly inadequate – Appeals against sentence in cases of Bogtstra and Kontoklotsis dismissed – Appeal against sentence in case of Karazisis allowed – Weight to be given to extent of victim’s injuries – Karazisis re-sentenced to total effective term of three years and eight months’ imprisonment – Non-parole period of one year and ten months fixed.

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Appearances:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC with Mr B Sonnet	C Hyland, Solicitor for Public Prosecutions
For the Respondent Karazisis	Mr R van de Wiel QC with Mr C B Boyce	Charlesworth Josem Partners
For the Respondent Bogtstra	Mr P A Dunn QC with Mr L C Carter	Galbally & O’Bryan
For the Respondent Kontoklotsis	Mr O P Holdenson QC with Mr T Kassimatis	Theo Magazis & Associates

WARREN CJ
MAXWELL P:

We have had the considerable advantage of reading in draft the joint reasons for judgment of Ashley, Redlich and Weinberg JJA. We agree with the disposition of the appeals which their Honours propose, for the reasons which they give. Subject to one matter, we are also in agreement with the conclusions reached by the majority as to the abolition of ‘double jeopardy’ and with their reasons.

We have, however, reached a different conclusion regarding the relevance of double jeopardy as a consideration affecting the exercise by the Director of Public Prosecutions (‘the Director’) of…

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 Karazisis

Details

AGLC: DPP v Karazisis [2010] VSCA 350
Case: [2010] VSCA 350
Decision Date: 17 December 2010

CaseChat Overview and Summary

The appeal was brought by the Director of Public Prosecutions against the sentence of Karazisis, who had been convicted of affray, recklessly causing serious injury, and intentionally causing injury. The case was heard in the Court of Appeal, which included members from the Supreme Court and the Court of Criminal Appeal. The appeal concerned the adequacy of the sentence given to Karazisis, who was part of a group of off-duty security officers that had attacked restaurant patrons without provocation. The other two offenders were sentenced to shorter terms of imprisonment, and the Crown appealed against their sentences as well, but these appeals were dismissed.

The primary legal issue before the court was whether the sentence given to Karazisis was manifestly inadequate. This involved an interpretation of the Criminal Procedure Act 2009, particularly sections 287, 289, and 290, which govern the court's discretion in such appeals. The court also considered the extent to which the abolition of double jeopardy by Parliament should influence its assessment. Furthermore, the court had to determine the scope of its residual discretion to dismiss a Crown appeal and how the role of the Director of Public Prosecutions in screening these appeals had been affected by legislative changes.

In reaching its decision, the court carefully weighed the severity of the victim's injuries and the broader implications of the crime. The court found that the initial sentence of two years and four months with a non-parole period of 12 months was inadequate in light of the harm caused. It re-sentenced Karazisis to a total effective term of three years and eight months, with a non-parole period of one year and ten months. This re-sentencing was intended to reflect the seriousness of the offences and ensure appropriate deterrence and denunciation.

Orders