Kourpanidis v The Queen

Case [2022] ACTCA 11


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Kourpanidis v The Queen

Citation:

[2022] ACTCA 11

Hearing Date:

15 February 2022

DecisionDate:

17 March 2022

Before:

Mossop and Abraham JJ and Walmsley AJ

Decision:

The appeal is dismissed

Catchwords:

APPEAL – SENTENCE – Whether the sentencing judge erred in considering whether the offence was committed by the appellant in circumstances of provocation – whether the sentencing judge erred in considering the objective seriousness of the offence – whether the sentencing judge erred in taking account reasons for leniency only in determining the nonparole period – whether the sentence imposed was manifestly excessive – no error established – appeal dismissed

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), s 33

Crimes Act 1900 (ACT), s 15

Sentencing Act 1991 (Vic), s 5(2)(b)

Cases Cited:

Bugmy v The Queen [1990] HCA 18, 169 CLR 525

Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428
Foaiaulima v The Queen [2020] NSWCCA 270; 285 A Crim R 222
Grant v R [2014] NSWCCA 67
Hawat v R [2020] NSWCCA 121
Heard v The Queen [2015] ACTCA 6
Hili v The Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Blacklidge (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Grove and Ireland JJ, 12 December 1995)
R v Campbell [2016] QCA 42
R v Duffy [2014] ACTCA 53; 297 FLR 359
R v England [2001] ACTSC 33
R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
R v Higgins (No 2) [2021] ACTSC 202
R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
R v Kourpanidis [2021] ACTSC 112
R v Speechley [2012] NSWCCA 130; 221 A Crim R 175
R v Urlich [2018] ACTSC 345
R v Vickerstaff (No 2) [2019] ACTSC 343
R v Weinman (1987) 49 SASR 248
Sorensenv R [2016] NSWCCA 54
The Queen v Omari [2022] ACTCA 4
The Queen v Pham [2015] HCA 39; 256 CLR 550
Tracey v The Queen [2020] ACTCA 51
Tuncbilek v R [2020] NSWCCA 30
Tyler v TheQueen [2007] NSWCCA 247; 173 A Crim R 458
Tyne v Tasmania [2005] TASSC 119; 158 A Crim R 208

Ulrich v The Queen [2019] ACTCA 30;14 ACTLR 267

Parties:

Kerry Kourpanidis ( Appellant)

The Queen ( Respondent)

Representation:

Counsel

S J Odgers SC and M Jones SC ( Appellant)

S Drumgold SC and K L McCann ( Respondent)

Solicitors

O’Connor, Harris & Co Solicitors ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

ACTCA 31 of 2021

Decision under appeal: 

Court:  

Before:

Date of Decision:

Case Title:

Citation:

Supreme Court of the ACT

Elkaim J

3 June 2021

R v Kourpanidis

[2021] ACTSC 112

THE COURT:

Introduction

  1. On 3 June 2021, after pleading guilty to the offence of manslaughter, the appellant was sentenced to imprisonment for…

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Kourpanidis v The Queen [2022] ACTCA 11
Case
[2022] ACTCA 11
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Mossop and Abraham JJ and Walmsley AJ, heard an appeal by Kerry Kourpanidis against a sentence imposed by the Supreme Court of the ACT. The appellant had pleaded guilty to manslaughter and was sentenced to seven years and six months imprisonment with a non-parole period of three years and nine months. The appeal concerned four grounds: that the sentencing judge erred in considering provocation, in assessing the objective seriousness of the offence, in limiting reasons for leniency to the non-parole period, and that the sentence was manifestly excessive.

The legal issues before the Court of Appeal included whether the sentencing judge had made errors of principle in considering the appellant's provocation and the objective seriousness of the manslaughter offence. Specifically, the appellant argued that the sentencing judge erred in finding the offence constituted "vigilante conduct" without sufficient proof of premeditation, and that the judge had focused on the time for reflection rather than the appellant's actual state of mind regarding provocation. The appellant also contended that if provocation had been given greater weight, the objective seriousness of the offence would have been assessed as low.

The Court of Appeal found that the grounds of appeal were not established. It held that the sentencing remarks should be read as a whole and that the appellant's submissions often involved a misreading of those remarks or took passages out of context. The Court noted that appellate courts are generally bound by the findings of fact made by the primary judge unless those findings were not open on the evidence. Regarding the assessment of objective seriousness, the Court found that the sentencing judge's conclusion that the offence was not of low objective seriousness was not solely based on the finding as to provocation, but followed from a rejection of the appellant's submissions on that point. The Court also observed that the sentencing judge had considered the appellant's submissions regarding provocation and had concluded that it did not significantly reduce the appellant's moral culpability.

The appeal was dismissed.

Orders

Orders of the court

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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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