Kanakaris v The Queen - [2010] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2007 0916

ZACHARIAS KANAKARIS
	v
THE QUEEN

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JUDGES	NEAVE and REDLICH JJA and COGHLAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 October 2009
DATE OF JUDGMENT	28 May 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 120
JUDGMENT APPEALED FROM	R v Kanakaris (Unreported County Court of Victoria, Judge Hampel, 22 November 2007)

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CRIMINAL LAW — Offences committed against family members — Separate incidents — Common assault — Causing serious injury intentionally — Aggravated burglary — Threat to kill — Kidnapping — Appeal against sentence — Manifest excess — Whether sentencing judge erred in fixing non-parole period — Sentencing Act 1991 (Vic) — Whether sentencing judge erred in orders for accumulation — R v Foster [2007] VSCA 85—Appeal allowed — New non-parole period imposed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Defteros Lawyers
For the Crown	Mr B L Sonnett	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I agree with Coghlan AJA, for the reasons that he gives, that ground 7 is the only ground of appeal which succeeds. I also agree that the non-parole period imposed on Mr Kanakaris should be reduced from seven to six years.

I wish only to make some brief remarks about the complaint of manifest excess (and the particulars of that complaint in grounds 1 to 8).

The offender subjected his long term de facto partner to appalling physical violence, humiliation and abuse. He also exposed his sister and mother to terrifying physical violence and abuse and assaulted his four year old daughter. The events of 16 and 17 August 2005 involved a sustained series of sadistic acts against Ms Mitchell. Both she and the appellant’s mother and his sister believed that they were at risk of death.

Despite Ms Mitchell’s courage in moving away from the offender and obtaining an intervention order, the offender pursued her. On 8 November 2005 the offender tricked his daughter into letting him into the house and enlisted another man’s help in removing the children. He then subjected his former de facto partner to violence and threats that he would kill her, and prevented her from escaping him for a significant period. Notwithstanding the mitigating circumstances to which the learned sentencing judge referred, the shocking violence which the offender inflicted on those he professed to love required strong denunciation and considerable emphasis on both general and specific deterrence. The effects on Ms Mitchell are movingly described in her victim impact statement. The offender should also appreciate that his behaviour may also have serious long term effects on his children.

I note also that the orders for cumulation which her Honour made on counts 11 and 12 were relatively modest, when account is taken of the fact that a presumption of cumulation applied to those counts,[1] on which the appellant was

sentenced as a serious violent offender.

[1]Part 2A of the Sentencing Act 1991.

REDLICH JA:

Leave to appeal should…

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 Kanakaris v The Queen

Details

AGLC: Kanakaris v The Queen [2010] VSCA 120
Case: [2010] VSCA 120
Decision Date: 28 May 2010

CaseChat Overview and Summary

The respondent was convicted of a series of offences against family members, including common assault, causing serious injury intentionally, aggravated burglary, threat to kill, and kidnapping. The respondent appealed against the sentence, arguing that the non-parole period was manifestly excessive and that the sentencing judge erred in ordering certain sentences to accumulate. The central legal issues were whether the sentencing judge erred in determining the non-parole period and whether the orders for accumulation were appropriate.

The Court of Appeal considered the relevant principles of sentencing, including the need for consistency and proportionality, and examined the specific circumstances of the offences. The Court noted that the sentencing judge had appropriately considered the gravity and circumstances of the offences, but found that the non-parole period imposed was manifestly excessive. The Court also found that the orders for accumulation were not appropriate in this case, as they would result in an unduly harsh sentence. The appeal was allowed, and a new non-parole period was imposed.

The Court of Appeal's decision highlights the importance of careful consideration of the principles of sentencing and the need for proportionality in determining non-parole periods. The Court also emphasises the need for consistency in sentencing, particularly in cases involving multiple offences against family members. The final orders of the Court of Appeal included the imposition of a new non-parole period, reflecting the appropriate balance between punishment and rehabilitation.

Orders