SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0011
| ROSS KONIDARIS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | EMERTON and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 October 2021 |
| DATE OF JUDGMENT: | 15 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 309 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1685 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to charges of burglary, aggravated burglary, attempted aggravated burglary, attempted armed robbery, common assault, entering a private place without excuse, and unlawful assault with a weapon – Appellant killed grandparents in 2012 while suffering delusions – Appellant diagnosed with schizophrenia and substance use disorder – Appellant found not guilty of murder by reason of mental impairment and subject to custodial supervision order – At time of present offending, appellant living in low-security unit at Thomas Embling Hospital and allowed to leave for recreational and other purposes – Appellant ingested cocaine and then drove to residential area – Appellant formed belief he was being followed and needed to change cars in order to escape – Appellant entered properties and threatened and assaulted residents – Appellant also assaulted victim on street demanding car keys – Total effective sentence 6 years’ imprisonment with non-parole period of 4 years – Whether sentencing judge denied appellant procedural fairness by accessing and relying on medical report not formally tendered or relied on in the plea – Whether denial of procedural fairness by sentencing judge using report to make findings contrary to expert evidence before the Court – Judge acted as investigator and stepped outside the judicial role – Denial of procedural fairness – SD v The Queen (2013) 39 VR 487, applied – Appeal allowed – Appellant resentenced to 5 years’ imprisonment with non-parole period of 3 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S E Lacy and Mr C K Wareham | Greg Thomas, Barristers & Solicitors |
| For the Respondent | Ms S Clancy | Ms A Hogan, Solicitor for Public Prosecutions |
EMERTON JA
OSBORN JA:
On 14 September 2020, the appellant pleaded guilty to burglary, aggravated burglary, attempted aggravated burglary, attempted armed robbery, and common assault. He also pleaded guilty to three related summary offences, being one charge of entering a private place without excuse, and two charges of unlawful assault with a weapon.
The appellant was sentenced on 16 October 2020[1] as follows:
[1]DPP v Konidaris [2020] VCC 1685 (‘Reasons’).
Charge on Indictment K12406470
Offence
Maximum
Sentence
Cumulation
1
Burglary
(contrary to s 76 of the Crimes Act 1958)10 years
6 months
1 month
2
Aggravated burglary (contrary to s 77(1) the Crimes Act 1958)
25 years
4 years
Base
3
Attempted aggravated burglary
(contrary to ss 77(1) and 321M of the Crimes Act 1958)20 years
1 year
4 months
4
Attempted armed robbery
(contrary to ss 75A and 321M of the Crimes Act 1958)20 years
2 years,
6 months9 months
5
Common law assault
5 years
1 year
6…
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- AGLC
- Konidaris v The Queen [2021] VSCA 309
- Case
- [2021] VSCA 309
- Decision Date
CaseChat Overview and Summary
The court considered whether the sentencing judge had acted in an investigatory role by accessing the report and thereby stepping outside the judicial role, as outlined in SD v The Queen. The court found that the judge had indeed denied the appellant procedural fairness by relying on the report in question. The report was not formally tendered or relied upon in the plea, and the judge's use of it to make findings that contradicted expert evidence presented in court was deemed to have breached the principles of procedural fairness. The court held that the judge's actions constituted a denial of procedural fairness and amounted to the judge stepping outside the judicial role by acting as an investigator. As a result, the appeal was allowed, and the appellant was resentenced to 5 years’ imprisonment with a non-parole period of 3 years.
The court's decision underscores the importance of procedural fairness in the sentencing process, particularly in cases involving mental health and expert evidence. The reliance on an undisclosed medical report by the sentencing judge was found to be a significant error that warranted the allowance of the appeal and a subsequent resentencing. This case serves as a reminder of the need for strict adherence to procedural fairness to ensure that justice is served fairly and equitably.
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Evidence Before The Court
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