DPP v Mourkakos - [2007] VSCA 312

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 204 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS
	v
PETER MOURKAKOS

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JUDGES:	MAXWELL P, NETTLE and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 December 2007
DATE OF JUDGMENT:	19 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 312	1^ST REVISION 21/12/2007

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CRIMINAL LAW – Sentencing – Crown appeal – Intentionally and recklessly causing injury, aggravated burglary, affray, criminal damage – Manifest inadequacy of individual sentences and total effective sentence – Whether youth and prospects of rehabilitation given weight disproportionate to gravity of offences and general and specific deterrence – Whether detention in Youth Justice Centre appropriate – Good prospects of rehabilitation – Suspended sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr P G Priest QC with Mr S T Russell	Leanne Warren & Associates

MAXWELL P:

I have had the benefit of reading in draft the reasons for judgment of Dodds-Streeton JA. I agree that the appeal should be disposed of as her Honour proposes. Subject to what follows, I do so for the reasons which her Honour gives.

As her Honour has noted, the sentencing judge placed great emphasis on the respondent’s prospects for rehabilitation. Having said that the ‘indiscriminate and mindless violence’ in which the respondent had engaged was deserving of strong condemnation, his Honour went on:

Nevertheless there can be no doubt that the community has a strong interest in seeking to ensure that young people learn from their mistakes, even bad ones, and are given the opportunity to put them behind them and become law abiding and contributing members of the community. It is right for the individual young person and it is right for the community. Rehabilitation therefore is an important matter. Prison should be the disposition of last resort.

I respectfully endorse those remarks. His Honour was confident that the time the respondent had spent in adult gaol made it likely that he had learnt his lesson. It was on that basis that the judge imposed terms of imprisonment which did not exceed the period the respondent had already served. It is important to note that, while we have come to the view that the sentences imposed were manifestly inadequate, we have reached the same conclusion as his Honour did about the respondent’s strong prospects of rehabilitation.

We have, of course, the advantage of knowing how well the respondent has performed over the six months since he was sentenced. As Mr Riordan of Youth Justice states in his recent report to the court –

Peter has worked hard to stabilise his life, despite the many life stressors he is facing. Generally, life appears to be the best it has been for him for several years. Peter is in a caring relationship and he has returned to playing competitive sport three times per week … . In addition, he has secured employment, which has helped build a sense 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 Mourkakos

Details

AGLC: DPP v Mourkakos [2007] VSCA 312
Case: [2007] VSCA 312
Decision Date: 19 December 2007

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on Mourkakos, who was convicted of intentionally and recklessly causing injury, aggravated burglary, affray, and criminal damage. The sentencing court found the youth of the offender and his prospects of rehabilitation to be significant mitigating factors, imposing a suspended sentence. The Crown argued that the sentence was manifestly inadequate, did not appropriately weigh the offender's youth and rehabilitation prospects against the gravity of the offences, and did not sufficiently serve general and specific deterrence. The Crown also questioned whether detention in a Youth Justice Centre was appropriate.

The court considered whether the original sentence was manifestly inadequate and whether the sentencing judge had appropriately balanced the mitigating factors of youth and rehabilitation prospects against the aggravating factors of the gravity of the offences and the need for general and specific deterrence. The court found that the original sentence did not sufficiently reflect the gravity of the offences, and that the mitigating factors of youth and rehabilitation prospects had been given disproportionate weight. The court held that the sentence was manifestly inadequate and that detention in a Youth Justice Centre was more appropriate.

Accordingly, the appeal was upheld, the original sentence was set aside, and the matter was remitted to the sentencing court for re-sentencing. The court emphasised that the youth of the offender and his prospects of rehabilitation were significant mitigating factors, but that these factors should not have been given disproportionate weight in the sentencing decision. The court also noted that a suspended sentence was not an appropriate penalty for the offences committed.

The court imposed a sentence of detention in a Youth Justice Centre, with a non-parole period of six months. The court found that the sentence was appropriate given the gravity of the offences, the need for general and specific deterrence, and the offender's prospects of rehabilitation. The court noted that the offender had shown remorse and had a good support network, which were significant mitigating factors. However, the court found that these factors did not outweigh the need for a sentence that adequately reflected the seriousness of the offences and the need for general and specific deterrence.

Orders