Nicos Kiril (a Pseudonym)[1] v The Queen - [2019] VSCA 133

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0271

NICOS KIRIL (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of the identification of the applicant’s children, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2019
DATE OF JUDGMENT:	14 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 133
JUDGMENT APPEALED FROM:	[DPP v Kiril & Anor] (Unreported, County Court of Victoria, Judge Carmody, 5 October 2018)

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CRIMINAL LAW – Appeal – Sentence – Reckless conduct endangering life – Applicant provided inadequate care for his elderly mother putting her in danger of death – At time of death victim living in squalid conditions, weighing 34 kilograms and covered in sores – Late guilty plea – Applicant sentenced to 18 months’ imprisonment with non-parole period 12 months – Whether sentence manifestly excessive because of delay – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Backwell
For the Respondent	Mr JCJ McWilliams	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

On 13 October 2013, the applicant’s mother, ‘PJG’, aged 83 years, died.

The next day, Dr David Ranson, carried out a post-mortem examination of the body of PJG, and concluded that PJG died as the result of bronchopneumonia in a setting of cerebral infarction. His findings included that PJG, who weighed a mere 34 kilograms at the time of her death, had:

· six bruises or scabbed abrasions on her head, including a four centimetre bruise in the mid-part of her forehead;

· ten bruises or scabbed abrasions on her chest and abdomen;

· twelve scabbed abrasions on her arms, including one which was twelve centimetres in length;

· eighteen bruises and scabbed abrasions on her feet and legs, including one fourteen centimetres in length, and some containing pus and abscesses;

· a number of scabbed abrasions and pressure sores to the rear of her body;

· no drugs in her system, including that prescribed to control her epilepsy;

· ischaemic heart disease and cerebral infarction; and

· bronchopneumonia associated with significant amounts of aspirated food material in her airways.

Professor Joseph Ibrahim, a specialist in geriatric medicine, expressed the opinion that PJG was the victim of severe neglect or elder abuse.

Based on the medical evidence, it is clear that for an extended period prior to her death, the applicant and his wife, ‘DK’, severely neglected PJG — who was elderly, frail and dependent upon them for her care — and permitted her to subsist in squalid conditions. Indeed, their treatment of her was nothing short of inhumane.

On 18 October 2013, the applicant and DK were interviewed by police. Both provided ‘no comment’ interviews, and were released pending further enquiries. Police did not charge the applicant and his wife, however, until 12 July 2016. A year later, on 13 July 2017, they…

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 Nicos Kiril (a Pseudonym)[1] v The Queen

Details

AGLC: Nicos Kiril (a Pseudonym)[1] v The Queen [2019] VSCA 133
Case: [2019] VSCA 133
Decision Date: 14 June 2019

CaseChat Overview and Summary

Nicos Kiril, whose identity is protected by a pseudonym, has appealed against a sentence imposed by the court for his role in the death of his elderly mother. The case was heard in the Court of Appeal, which was tasked with reviewing the sentence and determining whether it was excessive given the delay in the applicant's guilty plea. The applicant had provided inadequate care for his mother, resulting in her living in squalid conditions, weighing just 34 kilograms, and covered in sores at the time of her death. He entered a guilty plea late in the proceedings and was sentenced to 18 months' imprisonment, with a non-parole period of 12 months.

The primary legal issue before the court was whether the sentence was manifestly excessive due to the delay in the applicant's guilty plea. The court was required to consider the principles of sentencing, the nature of the offence, and the relevant circumstances surrounding the delay. The applicant argued that the delay in his guilty plea should have been a mitigating factor that warranted a more lenient sentence. The prosecution, however, contended that the delay did not warrant a reduced sentence, given the severity of the neglect and the circumstances of the victim's death.

In delivering its judgment, the Court of Appeal held that the sentence was not manifestly excessive. The court recognised that the neglect and conditions in which the victim was found were appalling and warranted a significant penalty. However, it also noted that the delay in the applicant's guilty plea did not sufficiently mitigate the severity of the crime. The court balanced the need for deterrence and the principles of justice, concluding that the sentence imposed was appropriate and not manifestly excessive. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders