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Kalofolias v The Queen

Kalofolias v The Queen

Case [2017] VSCA 308 26 October 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0237
PERRY KALOFOLIAS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BEACH and McLEISH JJA
WHERE HELD:	GEELONG
DATE OF HEARING:	31 July 2017
DATE OF JUDGMENT:	26 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 308
JUDGMENT APPEALED FROM:	DPP v Kalofolias (Unreported, County Court of Victoria, Judge Hampel, 12 October 2016 (date of sentence))

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Rape – Sentence of 6 years’ imprisonment with non-parole period of 4 years – Manifest excess – Whether sentence was manifestly excessive – Applicant in position of authority over victim – Comparable cases – Relevance of comparable cases – Whether sentence wholly outside permissible range – Not reasonably arguable that sentence imposed manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T E Wraight QC with Mr P J Smallwood	Stephen Andrianakis & Associates
For the Respondent	Ms S A Flynn	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P

BEACH JA
McLEISH JA:

On 27 September 2016, the applicant pleaded guilty in the County Court to one charge of rape. The maximum term of imprisonment for the offence of rape is 25 years.

On 12 October 2016, following a plea hearing, the applicant was sentenced to a term of imprisonment of six years. A non-parole period of four years was fixed. The sentencing judge directed that this sentence was to be served cumulatively upon a sentence the applicant was then serving for unrelated offending. In addition, the judge declared, pursuant to s 6AAA of the Sentencing Act 1991, that but for the applicant’s plea of guilty the judge would have sentenced him to be imprisoned for a period of seven years and fixed a non-parole period of five years.[1]
[1]DPP v Kalofolias (Unreported, County Court of Victoria, Judge Hampel, 12 October 2016) (‘Reasons’). A different version of her Honour’s reasons for sentence, with a medium neutral number of [2016] VCC 1532, may be found at The parties were, however, agreed that her Honour’s reasons, as pronounced at the time of sentencing, are accurately recorded in the unreported reasons in the application book.

The applicant seeks leave to appeal against his sentence on the ground that the sentence imposed, the non-parole period and the order that the sentence be served cumulatively upon the sentence the applicant was then serving, were all manifestly excessive. In particularising his complaint of manifest excess, the applicant contended that the judge gave insufficient weight to:

(a) the applicant’s plea of guilty, particularly when regard is had to the judge’s s 6AAA declaration;

(b) the gravity of the offending;

(c) the applicant’s limited criminal history;

(d) the principle of totality; and

(e) the applicant’s prospects for rehabilitation.

Circumstances of the offending

The complainant was an 18 year old employee of the applicant’s family pizza restaurant. The applicant was aged 44 at the time of the…

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 Kalofolias v The Queen

Details

AGLC: Kalofolias v The Queen [2017] VSCA 308
Case: [2017] VSCA 308
Decision Date: 26 October 2017

CaseChat Overview and Summary

The applicant, Kalofolias, appealed against the sentence imposed by the Supreme Court of Victoria for the offence of rape, seeking leave to appeal against what he considered a manifestly excessive sentence. The sentence was six years' imprisonment with a non-parole period of four years. The crux of the appeal was the perceived disproportionate nature of the sentence given the circumstances of the case, particularly considering the applicant's position of authority over the victim.

The court was tasked with determining whether the sentence was manifestly excessive, considering both the general principles of sentencing and the specific circumstances of this case. The legal issues included the relevance and comparability of previous cases in assessing the sentence, the criteria for determining a manifestly excessive sentence, and the overall proportionality of the sentence within the permissible range. The court examined the sentencing remarks of the trial judge, the aggravating and mitigating factors, and the principle of parity in sentencing.

In evaluating the applicant's appeal, the court found that while the sentence was severe, it was not so disproportionate as to be manifestly excessive. The court highlighted that the sentence was within the range considered appropriate for the offence of rape, particularly given the aggravating factors such as the applicant's position of authority over the victim. The court concluded that there was no reasonable argument that the sentence imposed was manifestly excessive or outside the permissible range for such offences. Consequently, the application for leave to appeal was dismissed.

Orders