Criminal law – Conviction – Murder – Joint criminal enterprise – Whether ‘presence’ required at the time of act(s) causing death – Counselling and procuring – Whether applicant must know/believe that death will result from acts of principal(s) – Whether requirement that procuring be a cause of the principal’s conduct – Acceptance by Crown of pleas of guilty by principals to manslaughter – Whether abuse of process for Crown to argue that applicant counselled or procured others to commit murder – Application for leave to appeal refused.
Sentence – Crown appeal – Whether sentence of 20 years imprisonment with non-parole period of 17 years manifestly inadequate – No complaint of specific error – Murder involved prolonged torture, humiliation and degradation of the victim – Appeal dismissed.
Sentence – Manslaughter – Youthful offender – Plea of guilty – Offending influenced by father – Mitigating factors of less significance by reason of gravity of the offending – Sentence of 12 years’ imprisonment with a minimum term of nine years’ imprisonment not manifestly excessive.
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APPEARANCES:
Counsel
Solicitors
For the Applicant Dimitrios Likiardopoulos
Mr M J Croucher with Mr A P Halphen
Lewenberg and Lewenberg
For the Applicant John Likiardopoulos
Mr T Kassimatis
Balmer & Associates
For the Crown
Mr J D McArdle QC
Mr C Hyland, Solicitor for Public Prosecutions
BUCHANAN JA ASHLEY JA TATE JA:
Christopher O’Brien died on 8 March 2007. At the outset, a number of men, and one woman, were charged with his murder. The men included the applicants Dimitrios and John Likiardopoulos, and Hakan Aydin.
The Crown later accepted pleas to manslaughter by John Likiardopoulos and Aydin and pleas by Shalendra Singh, Constantine Likiardopoulos and Darren Summers to being accessories after the fact to manslaughter.[1] Pleas were made on behalf of John Likiardopoulos and Aydin on 17 July 2008 and the two men were sentenced on 30 September that year. The former was sentenced to 12 years’ imprisonment with a non-parole period of nine years.[2] He seeks leave to appeal against the severity of his sentence.
[2]Aydin, who had undertaken to give evidence against the applicant, was sentenced at the same time – to six years’ imprisonment with a non-parole period of three years and six months.
Dimitrios Likiardopoulos stood trial for murder in the Supreme Court in February 2009. After a nine day trial, followed by very short deliberations, the jury returned a verdict of guilty of murder. On 5 June 2009, he was convicted and sentenced to 20 years’ imprisonment…
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.
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Details
AGLC
Likiardopoulos v The Queen [2010] VSCA 344
Case
[2010] VSCA 344
Decision Date
CaseChat Overview and Summary
The applicant, Likiardopoulos, appealed against his conviction and sentence for murder and manslaughter, with the case being heard by the High Court of Australia. The central dispute pertained to the role Likiardopoulos played in a joint criminal enterprise that resulted in the death of a victim. The Crown argued that Likiardopoulos had counselled and procured others to commit murder, while Likiardopoulos contended that he was not present at the scene of the crime and did not intend for death to result from the actions of the others involved. The court had to determine whether mere presence at the crime scene was necessary for a conviction of murder, and if knowledge or belief of the outcome was required for a charge of counselling or procuring. The court was also required to consider whether the Crown's acceptance of pleas of guilty to manslaughter by the principals constituted an abuse of process when arguing for a conviction of murder against the applicant.
The court held that mere presence at the time of the act causing death was not required for a conviction of murder in a joint criminal enterprise. It also found that knowledge or belief of the outcome was not necessary for a charge of counselling or procuring, provided that the procuring was a cause of the principal’s conduct. Regarding the abuse of process argument, the court ruled that it was not an abuse for the Crown to argue that the applicant had counselled or procured others to commit murder, even after accepting pleas of guilty to manslaughter by the principals. The applicant’s application for leave to appeal was refused. In relation to the sentence, the court held that the 20-year imprisonment term with a non-parole period of 17 years for the murder charge was not manifestly inadequate, given the prolonged torture, humiliation, and degradation of the victim. Consequently, the Crown's appeal was dismissed. The court also found that the sentence of 12 years’ imprisonment with a minimum term of nine years’ for the manslaughter charge was not manifestly excessive, despite the mitigating factors, due to the gravity of the offending and the influence of the offender’s father.
In summary, the High Court of Australia dismissed the appeal against the applicant’s conviction and sentence, affirming the lower court’s decisions. The court clarified the legal requirements for charges of murder and manslaughter within a joint criminal enterprise and upheld the sentences imposed for the respective charges.