Konidaris v The Queen - [2021] VSCA 309

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 months

9 months

5

Common law assault

5 years

1 year

6…

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 Konidaris v The Queen

Details

AGLC: Konidaris v The Queen [2021] VSCA 309
Case: [2021] VSCA 309
Decision Date: 15 November 2021

CaseChat Overview and Summary

In Konidaris v The Queen, the appellant stood before the court following a series of violent offences committed in 2018. The appellant had previously been diagnosed with schizophrenia and a substance use disorder, and had been involved in a fatal incident in 2012, for which he was found not guilty of murder by reason of mental impairment. The appellant was residing in a low-security unit at Thomas Embling Hospital at the time of the current offences, which included burglary, assault, and threats made against residents in a residential area. The court had sentenced the appellant to a total of 6 years’ imprisonment with a non-parole period of 4 years. The primary issue before the court was whether the sentencing judge had denied the appellant procedural fairness by accessing and relying on a medical report that was not formally tendered or relied upon during the plea process. The appellant also argued that the judge had denied procedural fairness by using the report to make findings contrary to expert evidence presented in court.

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.

Orders