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Hatzis v The Queen

Hatzis v The Queen

Case [2021] VSCA 43 26 February 2021

Appeal

Sentencing

Manifestly Excessive Sentence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0160

NICHOLAS HATZIS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 February 2021
DATE OF JUDGMENT:	26 February 2021
PUBLICATION OF REASONS:	5 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 43
JUDGMENT APPEALED FROM:	DPP v Payne (a pseudonym) [2017] VCC 1342 (Judge Pullen)

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CRIMINAL LAW — Appeal — Sentence — Application for extension of time to appeal — Convicted of aggravated burglary, recklessly causing injury, intentionally causing injury, criminal damage and persistent contravention of a family violence protection order — Application almost 3 years out of time — Reasons for delay unsatisfactory — Application for extension of time granted in the interests of justice.

CRIMINAL LAW — Appeal — Sentence — Total effective sentence of 5 years and 1 month’s imprisonment with non-parole period of 3 years — Whether manifestly excessive — Objective gravity of offending assessed too highly — Leave to appeal granted — Appeal allowed — Resentenced to 3 years and 6 months’ imprisonment with non-parole period of 2 years and 3 months — DPP v Meyers (2014) 44 VR 486 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
McLEISH JA
T FORREST JA:

The applicant’s plea and sentence

On 17 July 2017, the applicant, who was then represented by counsel, pleaded guilty before a judge in the County Court to aggravated burglary[1] (one charge – charge 2); intentionally causing injury[2] (two charges – charges 3 and 4); recklessly causing injury[3] (one charge – charge 1); criminal damage[4] (one charge – charge 5); and persistent contravention of a family violence protection order[5] (one charge – charge 6); together with the related summary offence of contravening a family violence protection order.[6]
[1]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is five years’ imprisonment.
[4]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[5]Family Violence Protection Act 2008, s 125A. The maximum penalty is five years’ imprisonment or level 6 fine.
[6]Family Violence Protection Act 2008, s 123. The maximum penalty is two years’ imprisonment or level 7 fine.

Following a plea conducted by counsel on the applicant’s behalf, the judge sentenced the applicant on 27 July 2017 to a total effective sentence of five years and one month’s imprisonment, with a non-parole period of three years, in accordance with the following table:

Charge

Offence

Sentence

Cumulation

1

Recklessly causing injury

5 months

2 months

2

Aggravated burglary

4 years

Base

3

Intentionally causing injury

7 months

4 months

4

Intentionally causing injury

4 months

2 months

5

Criminal damage

4 months

2 months

6

Persistent contravention of a family violence protection order

4 months

2…

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 Hatzis v The Queen

Details

AGLC: Hatzis v The Queen [2021] VSCA 43
Case: [2021] VSCA 43
Decision Date: 26 February 2021

CaseChat Overview and Summary

The case of Hatzis v The Queen involved an appeal by the respondent, who had been convicted of multiple offences including aggravated burglary, recklessly causing injury, intentionally causing injury, criminal damage, and persistent contravention of a family violence protection order. The primary issue before the court was whether to grant an extension of time to appeal the sentence, which had been filed almost three years after the original sentence was handed down. Additionally, the court had to determine whether the total effective sentence of five years and one month's imprisonment, with a non-parole period of three years, was manifestly excessive.

The court assessed the reasons for the delay in lodging the appeal and found them unsatisfactory. However, it exercised its discretion to grant the extension in the interests of justice. The court then proceeded to consider the substantive appeal, focusing on the severity of the sentence. It was argued that the objective gravity of the offending had been assessed too highly, leading to an excessively severe sentence. The court agreed, finding that the original sentence was indeed manifestly excessive. Consequently, the appeal was allowed, and the respondent was re-sentenced to three years and six months' imprisonment, with a non-parole period of two years and three months.

In reaching its decision, the court referred to DPP v Meyers, where similar considerations were applied in reassessing the proportionality of the sentence. The final orders included the granting of leave to appeal, the allowance of the appeal, and the resentencing of the respondent to a reduced term of imprisonment.

Orders