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Koumis v The Queen

Koumis v The Queen

Case [2013] VSCA 47 7 March 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0259

THEODOSIS KOUMIS	Appellant
	V
THE QUEEN	Respondent

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JUDGES	NEAVE JA, KAYE and LASRY AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 February 2013
DATE OF JUDGMENT	7 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 47 (1^st Revision – 08.03.13 [5], fn 3, fn 21.)
JUDGMENT APPEALED FROM	DPP v Koumis (Unreported, County Court of Victoria, Judge Taft, 7 August 2012)

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CRIMINAL LAW − Appeal against sentence − Offences committed whilst on parole − Fresh evidence − Reclaimed parole − Whether cumulation of reclaimed parole on sentence imposed offends principle of totality − Whether application of principle of totality permits consideration of time already served under earlier sentence − Appeal dismissed

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the draft judgments of Kaye and Lasry AJJA. I agree with their Honours that leave to appeal should be granted and the appeal dismissed. In my opinion the sentence was not manifestly excessive, having regard to the legislative policy expressed in s 16(3B) of the Sentencing Act1991, the criminality involved in the entirety of the applicant’s offending and the fact that the offences were committed only a short time after he had been released on parole for the earlier serious offences.

I have reached that view regardless of whether the principle of totality only permits the Court to have regard to the period of imprisonment calculated by reference to the sentences against which the applicant appeals, combined with the additional period of imprisonment he will have to serve as a consequence of the breach of parole, or requires the Court to take account of the whole of the sentence imposed for the previous offending.

Although I agree with their Honours’ conclusion, I take a different view as to the approach which this Court must take to the application of the principle of totality. There is an attraction in the view expressed by my brother judges, that totality requires the court to consider the total period of imprisonment to be served by the applicant for his previous offending and the sentences imposed for the later offending, to which this appeal relates. Such an approach is logically consistent with the reasoning which underpins the totality principle, which is that the court must consider whether the effect of the sentence under appeal is proportionate to the offender’s overall criminality.

The determination of an appropriate sentence through the process of instinctive synthesis should not be over-complicated. The broader approach to totality which is supported by my brother judges is simpler than the approach taken by this court in McCartney v The Queen[1] and Waugh v The Queen,[2] which held that the

court is confined to considering only the combined parole sentence and the sentence for the later offences.

[1][2012]…

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 Koumis v The Queen

Details

AGLC: Koumis v The Queen [2013] VSCA 47
Case: [2013] VSCA 47
Decision Date: 7 March 2013

CaseChat Overview and Summary

Koumis appealed against the sentence imposed by the Court of Appeal, which ordered the cumulative service of time spent on parole with the sentence imposed for new offences. The respondent, The Queen, argued for the enforcement of the sentence. The legal issue before the court was whether the cumulation of reclaimed parole on the sentence imposed contravened the principle of totality and whether the application of the principle of totality permitted consideration of time already served under an earlier sentence. The court had to determine if the imposition of a cumulative sentence, including time spent on parole, was consistent with the principle of totality and if it could consider time already served under a prior sentence.

The court considered the principle of totality, which aims to avoid excessive punishment by considering the cumulative effect of sentences. The court noted that reclaiming parole time and imposing a cumulative sentence did not necessarily violate the principle of totality. The court held that the principle of totality does not preclude the consideration of time already served under an earlier sentence when imposing a sentence for new offences. The court also noted that the principle of totality does not prevent the cumulation of reclaimed parole time with a new sentence. The court found that the trial judge had not erred in imposing the cumulative sentence, including the reclaimed parole time.

The court dismissed the appeal, upholding the decision of the Court of Appeal. The court held that the trial judge did not contravene the principle of totality by imposing a cumulative sentence, including time spent on parole, and that the principle of totality permits consideration of time already served under an earlier sentence when imposing a sentence for new offences. The final orders confirmed the dismissal of the appeal and the enforcement of the sentence imposed by the Court of Appeal.

Orders