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…
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- Kanakaris v The Queen [2010] VSCA 120
- Case
- [2010] VSCA 120
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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