R v Alexandridis - [2008] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 10 of 2008

THE QUEEN
	v
EMMANUEL ALEXANDRIDIS

---

JUDGES:	BUCHANAN, NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 July 2008
DATE OF JUDGMENT:	15 July 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 126

---

Criminal Law – Sentence – Intentionally causing serious injury – Appellant not represented on plea – Appellant denied opportunity to give evidence on plea – Procedural fairness - Allegation that victim provoked assault - Whether a mitigating circumstance.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Ms R Shann	Lewenberg & Lewenberg

BUCHANAN JA:

I will ask Redlich JA to deliver the first judgment.

REDLICH JA:

On 21 August 2007, a jury, having been empanelled in the County Court to determine the appellant's fitness to plead, delivered a verdict that he was fit to stand trial. Following that verdict, the appellant pleaded guilty to one count of intentionally causing serious injury. He was sentenced to four years' imprisonment, with a non-parole period of two years.

At the time of the offence the appellant was 34 years of age. He had 93 prior convictions arising from 14 court appearances, prior convictions including offences of causing serious injury intentionally.

On the plea in mitigation and before the appellant made submissions, the prosecutor called evidence from a consultant psychiatrist from the Victorian Institute of Forensic Mental Health who had known the appellant in a professional capacity for over ten years. The doctor testified that the appellant had a well established history of paranoid schizophrenia, his psychotic symptoms including paranoid and religious delusional beliefs. There had been no period in the last ten years when the appellant had been entirely symptom-free.

The appellant now appeals against his sentence. First, it is alleged that he was not afforded procedural fairness during the course of the plea in mitigation, in which he was unrepresented. During the plea in mitigation he had refused to seek legal representation and conducted his plea in person. Second, it was contended that the sentencing judge failed to mitigate the sentence imposed because of the provocative conduct of the victim. Thirdly, it is said that the sentence is manifestly excessive.

It is convenient to first refer to the Crown summary of the offence. The appellant and the victim were both prisoners in the Melbourne Assessment Prison, the victim having arrived at the prison on 27 October 2005. He was let out of his cell the following morning at 8.30. The victim was reading the newspaper after breakfast when the appellant started talking to him. The appellant stated that he was in custody for 'touching up' two 16-year-old girls because he was a masseur. The appellant asked the victim what he was in for, but was informed by the victim that he wanted to keep it to himself. The appellant persisted, saying that he would be his friend. However, after the appellant was unable to…

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 R v Alexandridis

Details

AGLC: R v Alexandridis [2008] VSCA 126
Case: [2008] VSCA 126
Decision Date: 15 July 2008

CaseChat Overview and Summary

The appellant, Alexandridis, was convicted in the County Court of Victoria for intentionally causing serious injury to a person and was sentenced to imprisonment. Alexandridis was not represented by legal counsel when he pleaded guilty, and he was denied the opportunity to give evidence at the plea hearing. The appellant appealed against his sentence, arguing that the trial judge erred in failing to consider that he was not legally represented at the plea stage and that he was not given the opportunity to give evidence. Additionally, Alexandridis argued that the trial judge should have considered that the victim provoked the assault as a mitigating circumstance.

The primary legal issue before the court was whether the trial judge's failure to consider the appellant's lack of legal representation at the plea stage and the denial of his opportunity to give evidence constituted a breach of procedural fairness. Another issue was whether the allegation that the victim provoked the assault should have been considered as a mitigating circumstance. The court had to determine if these errors affected the overall fairness of the sentencing process and whether they warranted a reduction in the sentence.

The court found that the trial judge's failure to consider the appellant's lack of legal representation and the denial of his opportunity to give evidence did not constitute a breach of procedural fairness as it did not impact the outcome of the sentencing. The court reasoned that the appellant had been informed of his rights and had chosen not to exercise them. The court also held that the allegation that the victim provoked the assault was not a mitigating circumstance that the trial judge should have considered. The court found that the provocation, if true, did not reduce the gravity of the offence and did not warrant a lesser sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court. The appellant's sentence remained unchanged.

Orders