Koukakis v The King
[2025] VSCA 12
•18 February 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0160 |
| ILIAS KOUKAKIS | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | T FORREST JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 18 February 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 12 |
| JUDGMENT APPEALED FROM: | [2024] VCC 1293 (Judge Marich) |
APPLICATION FOR LEAVE TO APPEAL DETERMINED BY A SINGLE JUDGE PURSUANT TO s 315 OF THE CRIMINAL PROCEDURE ACT 2009
CRIMINAL LAW – Sentence – Application for leave to appeal – Co-accused of armed robbery – Whether judge erred in classifying gravity of armed robbery offence – Offending was objectively grave – No error – Application for leave to appeal is refused.
CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pled guilty to one charge of drug trafficking and one of armed robbery – Total effective sentence 2 years and 2 months’ imprisonment – Whether sentence was manifestly excessive – Sentence and non-parole period balanced the objective gravity and mitigatory factors – Not reasonably arguable that sentence was manifestly excessive – Application for leave to appeal is refused.
Almatrah v The King [2024] VSCA 301; Brooks (A Pseudonym) v The King [2023] VSCA 4; Clarkson v The Queen (2011) 32 VR 361; Director of Public Prosecutions (DPP) v Karazisis (2010) 31 VR 634; Lai v R [2023] VSCA 151; Young v The Queen [2016] VSCA 149, referred to.
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| Counsel | |||
| Applicant: | Mr J Barreiro | ||
| Respondent: | Mr L Andrews | ||
Solicitors | |||
| Applicant: | Stary Norton Halphen | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
T FORREST JA:
On 22 March 2024, the applicant (Ilias Koukakis) pleaded guilty in the County Court to one charge of attempting to traffick methylamphetamine[1] and one charge of armed robbery.[2] Following a plea in mitigation, on 5 August 2024, the applicant was sentenced as follows:
[1]Contrary to 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[2]Contrary to s 75A(1) of the Crimes Act 1958.
Charge on indictment
Offence
Maximum Penalty
Sentence
Cumulation
1 Attempt to traffick methylamphetamine 15 years’ imprisonment 3 months’ imprisonment N/A 2 Armed robbery 25 years’ imprisonment 26 months’ imprisonment Base Total Effective Sentence: 2 years and 2 months’ imprisonment Non-Parole Period: 15 months’ imprisonment Pre-sentence Detention Declared: 7 days Section 6AAA Statement: 3 years’ imprisonment Other relevant orders Relevant property be forfeited to the Minister.
The co-accused to the armed robbery offence (Mario Salatas) had been sentenced on 9 May 2024 as follows:
Charge on indictment
Offence
Maximum Penalty
Sentence
Cumulation
1 Armed robbery 25 years’ imprisonment 3 years’ imprisonment Base 2 Causing injury intentionally[3] 10 years’ imprisonment 6 months’ imprisonment - 3 Prohibited person – possess imitation firearm[4] 10 years’ imprisonment 2 years and 3 months’ imprisonment 12 months Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years and 10 months’ imprisonment Pre-sentence Detention Declared: 412 days Section 6AAA Statement: 6 years’ imprisonment, with a non-parole period of 4 years Other relevant orders N/A [3]Contrary to s 18 of the Crimes Act 1958.
[4]Contrary to s 5AB of the Control of Weapons Act 1990.
The applicant now seeks leave to appeal against sentence.
The offending
On 13 March 2023, the applicant exchanged Facebook messages with Christopher D’Aloia, and arranged a meeting whereby the applicant would supply methylamphetamine to Mr D’Aloia. The applicant and Mr D’Aloia had previously worked together and known each other for a number of years. The applicant agreed to supply Mr D’Aloia with a half ball of methylamphetamine in exchange for $450, and this constitutes charge 1 on the indictment. They agreed to meet at 1:30 pm at the Nelson Street in Oakleigh, near the Lamplighter’s Motel. This location was frequented by the applicant, Mr Salatas and the applicant’s then-partner, Luanne Panetta.
Around half an hour before the agreed meeting with Mr D’Aloia, the applicant arrived near the Lamplighter’s Motel, where he met with Mr Salatas and had a conversation with him outside the front of the motel.
The applicant, Mr Salatas and two other males entered room 23 of the motel, while Ms Panetta walked through the laneway adjacent to the motel. At around 1:25 pm, Mr Salatas left the motel room and entered another room, and a short phone call occurred between the applicant and Mr D’Aloia. Mr Salatas returned soon after and he and the applicant walked toward the laneway adjacent to the motel.
At around 1:30 pm, Mr D’Aloia parked his car on Westley Street, which intersects with Nelson Street. The applicant, who was followed by Mr Salatas and Ms Panetta, walked towards Mr D’Aloia’s car. Mr Salatas lifted his shirt to show Ms Panetta something in his waistband, and then she immediately stopped and walked back to the motel.
The applicant and Mr Salatas entered Mr D’Aloia’s car, sitting in the front and rear seats respectively. The applicant then asked Mr D’Aloia: ‘Where’s Joe’s $30,000?’ (apparently referring to a debt owed to Mr D’Aloia’s dealer), to which Mr D’Aloia replied, ‘Fuck Joe’.
Mr Salatas then revealed a black metal imitation firearm. At this point, the applicant knew and understood for the first time in this incident that Mr Salatas possessed an imitation firearm.
Mr Salatas struck Mr D’Aloia’s left cheekbone with the imitation firearm, causing a laceration, swelling and bleeding.
Witnesses heard Mr D’Aloia screaming and one witness also heard the words, ‘Give us the fucking money!’ and ‘You fucking dog!’ The applicant and Mr Salatas told Mr D’Aloia to pay the applicant money, and Mr D’Aloia transferred $455 to the applicant’s account via his phone. We spell out the applicant’s active participation in the armed robbery in paragraph [27] of these reasons. The applicant’s involvement in making these demands to Mr D’Aloia while knowing Mr Salatas had the imitation firearm and receiving the $455 electronic payment constitutes charge 2 on the indictment.
Police arrived at the scene after receiving a call from a witness, and the applicant was arrested and charged with the offending. When questioned in the police interview, the applicant denied knowing Mr Salatas, leaving the motel in company, having knowledge of the firearm and demanding money from Mr D’Aloia.
Reasons for sentence
Early guilty plea and utilitarian benefit
During sentencing, the judge considered the applicant’s early guilty plea and the utilitarian benefit of this early plea.[5] The judge noted the applicant’s remorse both about the offending and the applicant’s drug addiction.[6]
Personal circumstances
[5]DPP v Koukakis [2024] VCC 1293 (‘Reasons’), [21].
[6]Ibid.
The sentencing judge took account of the applicant’s personal circumstances. The applicant was aged 33 years at the time of offending.[7] The youngest of three children, the applicant was raised by a supporting mother and grandparents, but with an absent father.[8] The applicant had a positive school experience and completed year 12 after taking a break to undertake an electrical pre-apprenticeship and plumbing apprenticeship.[9] Following school, he continued successful employment as a concreter.[10]
[7]Ibid [22].
[8]Ibid [23].
[9]Ibid [25].
[10]Ibid.
At aged 24 years, the applicant began using methylamphetamine which grew over time into an addiction and ‘caused an unravelling of [the applicant’s] life’ and his work productivity.[11]
[11]Ibid [26].
As observed by the sentencing judge, the current offending is the first criminal conviction for the applicant.[12] He had a single court appearance in the Magistrates’ Court which resulted in a good behaviour bond without conviction for driving whilst suspended, speeding and failing an oral fluid test.[13] A referral for drug counselling was a condition of this bond.[14]
[12]Ibid [27].
[13]Ibid.
[14]Ibid.
The applicant has ‘exemplary’ participation in the court integrated support services program (CISP), although he admits to using methylamphetamine while on bail for the current offending.[15] The judge considered these factors and that the offending occurred with the backdrop of the applicant’s drug addiction.[16] Following the plea in mitigation, the applicant remained clear of drug use whilst on remand.[17]
Prospects of rehabilitation
[15]Ibid [28].
[16]Ibid.
[17]Ibid.
The sentencing judge noted the applicant’s generally good character, work ethic, skills in trade, compliance with bail (except for drug-use), remorse for the current offending, limited prior offending and availability of strong family support.[18] The judge deemed the applicant’s prospects of rehabilitation to be ‘good’ albeit contingent on the applicant’s ‘willingness and capacity to remain abstinent from drug use during and after [his] sentence’.[19] As such, the judge was ‘prepared to impose a longer than customary period of parole eligibility in reflection of these prospects’.[20]
Objective gravity
[18]Ibid [29].
[19]Ibid.
[20]Ibid.
The objective gravity of the offending was deemed to be high by the sentencing judge for the reasons below:
You engaged in pre-planning in relation to the robbery element of your offence with another person; your offence was committed in company in the confinement of the victim’s car. When your co-offender produced the imitation firearm there was that opportunity for you to register that the planned robbery was indeed an armed robbery. You made loud and frightening demands of an injured victim and took payment from him whilst others in the vicinity were sufficiently concerned by his screams to summon emergency services. This would have represented a terrifying ordeal. You were apparently motivated by the prospect of financial gain for yourself or another.[21]
General and specific deterrence
[21]Ibid [30].
The sentencing judge considered the importance of general and specific deterrence:
In cases of this nature, the need for general deterrence is high. In other words, I am required to send a message to the community generally to deter others from engaging in these types of behaviour. I must give significant emphasis to these objectives of sentencing, as well as to the need to denounce your behaviour and to punish you for your offending. I must also impose a sentence that specifically deters you from future offending, though given your relatively modest criminal history I have attached less weight to this sentencing purpose.[22]
Parity and totality
[22]Ibid [32].
Having regard to Mr Salatas’ greater role in the armed robbery and lower mitigation factors compared with the applicant, the sentencing judge observed the following:
Your co-offender, Mr Salatas, pleaded guilty at a “relatively late stage” to the charge of armed robbery, which you also face, and to charges of causing injury intentionally and being a prohibited person possess imitation firearm, which are exclusive to his involvement in the offending. His offending was in breach of bail, which yours was not. He played the more active role in escalating your agreement to rob, to the offence of armed robbery committed in the serious circumstances involving production of the imitation firearm. He admitted a lengthy prior criminal history involving a swathe of relevant earlier offences, including an earlier sentence for being a prohibited person possess firearm which led to a period of imprisonment. He was also a user of methylamphetamine and, unfortunately, he experienced childhood trauma. His circumstances led to a conclusion in the sentencing judge that his prospects for rehabilitation were guarded. On the charge of armed robbery, he was sentenced to three years’ imprisonment as part of a total effective sentence of four years’ imprisonment.[23]
[23]Ibid [33].
After outlining this comparison, the sentencing judge then considered how these factors weighed into the principle of parity and totality:
I have had careful regard to the parity principle of sentencing in imposing sentence upon you, and here I will observe that in order to do justice to this very important principle, I will impose sentence on your armed robbery charge, which, were it not for this principle, might otherwise lead to a sentence which others may consider lenient, particularly having regard to current sentencing standards.
I have also had regard to the totality principle of sentencing in structuring my sentence, particularly having regard to the attempt to traffic [sic] as being linked fairly closely in time to the armed robbery and explaining the chronology which led to the offending (whilst here I interpolate that the prosecution does not suggest that this offence was a ruse as part of the pre-planning for the robbery, and I do not take it into account as such).[24]
[24]Ibid [34].
Submissions on the sentence appeal
The applicant submits two grounds of appeal:
Ground 1: The sentencing judge erred in characterising the objective gravity of charge 2 as “high”.
Ground 2: The individual sentences are each manifestly excessive.
Particulars
The sentences were manifestly too long in light of:
(a) The objective gravity of the offending;
(b) The sentence imposed on the co-accused;
(c) The delay between the offending and the sentence;
(d) The applicant’s prospects of rehabilitation; and
(e) The utilitarian value of the applicant’s plea of guilty.
There is considerable overlap between ground 1 and particular (a) of ground 2. It is convenient to consider the two grounds together.
Relevant legal principles
The ground of manifest excess is a stringent ground.[25] It is difficult to establish. An appellant must demonstrate that something has gone obviously wrong in the exercise of the sentencing discretion. It must be shown that the sentence or sentences imposed were wholly outside the range of sentencing options available.[26] In the absence of material specific error the sentence or sentences must bespeak underlying error.[27]
[25]Director of Public Prosecutions (DPP) v Karazisis (2010) 31 VR 634, 662 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing); [2010] VSCA 350.
[26]Young v The Queen [2016] VSCA 149, 128 (Ashley, Whelan and Kaye JJA); Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[27]Lai v R [2023] VSCA 151, [16] (T Forrest and Osborn JJA). See also Brooks (A Pseudonym) v The King [2023] VSCA 4, [30] (Niall and T Forrest JJA); Almatrah v The King [2024] VSCA 301, [28] (T Forrest and Kenny JJA).
Consideration
The applicant alleges specific error in ground 1, namely that the judge overvalued the objective gravity of the offending. The argument essentially rests on the proposition that there are more serious ways to commit an armed robbery. True it is that the applicant could have entered a crowded bank with a sub-machine gun, but his offending is serious enough, nonetheless. An absence of an aggravating feature is not evidence of a mitigating feature.
The applicant formed an agreement to rob the hapless Mr D’Aloia before he and Mr Salatas left the Lamplighter’s Motel. The applicant was motivated by pecuniary gain of at least $450 and he commenced pleasantries in the car by saying, ‘Where’s Joe’s $30,000?’ The imitation firearm was produced shortly thereafter. It appeared real and was pointed at the back of the victim’s head. The putative robbery became an actual armed robbery in which the applicant participated with some enthusiasm. Mr Salatas struck the victim with the imitation firearm causing swelling and a laceration with associated bleeding. The applicant then made ‘loud and frightening’ statements[28] such as, ‘Give us the fucking money!’ and ‘You fucking dog!’ While Mr Salatas continued to display the imitation gun, the applicant demanded that the victim transfer $450 to the applicant’s pay ID account. This highly criminal activity occurred in the confined spaces of the victim’s car.
[28]Reasons, [30].
This narrative of the armed robbery justifies the judge’s characterisation of objective gravity as ‘high’. There is no error established in this regard.
Under ground 2, the applicant contended that the individual sentences were each manifestly excessive and sought to identify the following particulars:
(a)the objective gravity of the offending;
(b)the sentence imposed on the co-accused Mr Salatas;
(c)the delay between the offending and the sentence;
(d)the applicant’s prospects of rehabilitation;
(e)the utilitarian value of the applicant’s plea of guilty.
In my summary of the judge’s reasons, I have identified her Honour’s treatment of each of these sentencing aspects. It is probably sufficient to observe that there is no error in the treatment of each of these sentencing aspects. The judge’s reasons are concise and conscientious.
Insofar as parity on the armed robbery charge is concerned, whilst the co-offender had many prior convictions and had a somewhat greater role than the applicant, the sentence imposed on his armed robbery charge (3 years’ imprisonment) was, in my view, a fair reflection of the dissimilarities between the co-offenders. Mr Salatas’ head sentence on the armed robbery charge was nearly 40% higher than the applicant’s head sentence for the same offence.
The 16-month delay between the offending and sentence is unremarkable and this was conceded by the applicant’s counsel on the plea. Notwithstanding this, it is clear to me that her Honour took the delay into account as impacting particularly the applicant’s efforts towards — and prospects of — rehabilitation which were cautiously assessed as good. These no doubt informed her Honour’s generous non-parole period.
In short, I am of the view that the sentences imposed by her Honour on both charges and the non-parole period set reflects a sensible balance between the objective gravity of the offending and the strong mitigatory material assembled on the plea.
Conclusion
Neither proposed grounds of appeal are reasonably arguable.
Leave to appeal is refused.
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