Kandalepas v The King

Case [2024] NSWDC 447

District Court


New South Wales

Medium Neutral Citation: Kandalepas v R [2024] NSWDC 447
Hearing dates: 28 August 2024
Date of orders: 25 September 2024
Decision date: 25 September 2024
Jurisdiction:Criminal
Before: Scotting DCJ
Decision:

(1)   The appeal against the convictions is dismissed.

(2)   Appeal against severity is allowed.

(3)   I confirm the penalty imposed by the Magistrate except that I reduce the community service to 100 hours.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction

CRIME — Violent offences — Common assault

CRIME — Violent offences — Stalking or intimidation

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Cases Cited:

AGv Director of Public Prosecutions [2015] NSWCA 218

Chararav R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

GianoutsasvGlykis [2006] NSWCCA 137

Lumney v Director of Public Prosecutions [2021] NSWCA 186

McNab v Director of Public Prosecutions [2021] NSWCA 298

Category:Principal judgment
Parties: Vagelis Kandalepas (Appellant)
Rex (Respondent)
Representation:

Counsel:

Solicitors:
James and Jaramillo Lawyers (Appellant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2020/92694
Publication restriction: None
 Decision under appeal 
Court or tribunal:
Newtown Local Court
Jurisdiction:
Local Court
Date of Decision:
19 May 2023
Before:
Magistrate Bartley
File Number(s):
2020/92694

Judgment

Introduction

  1. Vagelis Kandalepas (the appellant) appeals against the convictions for the offences of Damage Property, two counts of Common Assault, and two counts of Intimidation entered by his Honour Magistrate Bartley at Newtown Local Court on 19 May 2023. The appellant brings the appeal as of right.

  2. The appellant and the complainant had been in an on-again-off-again intimate relationship. The complainant had been working at a restaurant in Beverly Hills and finished her shift at about 1.00am on 26 January 2020. She agreed to meet the appellant on her way home at a service station on the Princes Highway at Sydenham. When the appellant arrived he sat in the front passenger seat of the complainant’s vehicle. The pair had a conversation that developed into an argument.

  3. The prosecution alleged that the appellant punched the windscreen of the vehicle a number of times causing the glass to smash (sequence 1 destroy property). The appellant continued to argue with the complainant and he poked her with his finger causing her to feel scared (sequence 2 common assault). The complainant said to the appellant “you just smashed my Dad’s car” to which he responded, “so what, I’m going to smash you and your Dad and your car. I’m going to smash everyone, your whole family” (sequence 3 intimidation). While the argument continued the complainant turned on the ignition of the vehicle, at which time the appellant leaned across her and grabbed the key out of the ignition causing the key chain to break.

  4. At about 2.30am, an independent witness, Mr Houlbrook-Walk heard loud noises coming from the vehicle. When he approached he saw the appellant punch the windscreen a number of times. He approached the complainant and…

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AGLC
Kandalepas v The King [2024] NSWDC 447
Case
[2024] NSWDC 447
Decision Date

CaseChat Overview and Summary

The appellant, Kandalepas, appealed against his conviction and penalty in the District Court of New South Wales, following a conviction in the Local Court for common assault and stalking or intimidation. The appeal was against the conviction and the severity of the penalty imposed. The appeal was heard by the District Court, with the District Court Judge reviewing the evidence and the legal issues presented by both parties.

The primary legal issues the court needed to address were whether the evidence supported the convictions and whether the penalty imposed was appropriate. Regarding the conviction, the court examined the sufficiency of the evidence to establish common assault and stalking or intimidation beyond reasonable doubt. In terms of the penalty, the court considered whether the sentence was excessive or manifestly inadequate, focusing on the nature of the offences and the need for punishment and deterrence.

The court found that the evidence was sufficient to uphold the convictions, as it was clear that the appellant's actions constituted both common assault and stalking or intimidation. However, the court determined that the penalty was excessive, particularly the amount of community service imposed. While confirming the other aspects of the penalty, the court reduced the community service to 100 hours, considering the overall circumstances of the case.

The court dismissed the appeal against the convictions but allowed the appeal against the severity of the penalty. The final orders of the court were to dismiss the appeal against the convictions, allow the appeal against the severity of the penalty, and reduce the community service to 100 hours while confirming the rest of the penalty.

Orders

Orders of the court

(1) The appeal against the convictions is dismissed.

(2) Appeal against severity is allowed.

(3) I confirm the penalty imposed by the Magistrate except that I reduce the community service to 100 hours.

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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