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R v Alexopoulos

R v Alexopoulos

Case [2010] VSCA 52 17 March 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 844 of 2009

THE QUEEN
	v
FOTIOS ALEXOPOULOS

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JUDGES	NEAVE and REDLICH AJA and HANSEN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 February 2010
DATE OF JUDGMENT	17 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 52
JUDGMENT APPEALED FROM	R v Alexopoulos (Unreported, County Court of Victoria, Judge Lewitan, 10 September 2009)

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CRIMINAL LAW – Conviction – Jury found applicant guilty of causing injury recklessly and not guilty of intentionally damaging property – Verdicts not inconsistent – Application for leave refused.

CRIMINAL LAW – Sentence – Applicant’s parole cancelled – R v Mangelen [2009] VSCA 63 applied – Applicant’s youth and absence of subsequent offences weighed against applicant’s continued problems with alcohol, lack of remorse and vicious nature of offence – Moderation of specific and general deterrence because of reduced moral culpability – Same sentence would be imposed – Application for leave refused.

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Appearances:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr C Mandy	Andrew George Solicitors

NEAVE JA:

The applicant, Fotius Alexopoulos, was presented in the County Court on counts of causing serious injury intentionally or recklessly (counts 1 and 2) and intentionally damaging property (count 3). After a 17 day trial he was acquitted on counts 1 and 3, but convicted of causing injury recklessly (as an alternative to count 2).[1] He now appeals against his conviction on the sole ground that the guilty verdict on the count of recklessly causing injury was inconsistent with his acquittal on count 3 and that this was indicative of a compromise by the jury.
[1]See Crimes Act 1958, s 421(2) repealed by Criminal Procedure Act 2009, s 422(2)(c). The provision is now contained in Criminal Procedure Act 2009, s 239.

After hearing a plea in mitigation of sentence, the learned trial judge sentenced Mr Alexopoulos to 12 months’ imprisonment with a non-parole period of 6 months. He also appeals against that sentence, on grounds which are set out in [51] below.

Background to the offending and the offender

The offences were committed on 15 April 2006 near the Crown Casino complex. After the applicant became involved in an altercation with other patrons in the Mercury Lounge, a nightclub located inside the complex, nightclub security personnel ejected him and his friend George Hatzimanolis. The applicant claims he was kicked, punched and dragged down stairs by security staff, before being ejected onto the street outside.

Shortly afterwards, the applicant encountered the victim, James Powell, who was on his way home after working as a security guard in the Casino. Mr Powell was wearing his uniform and his Casino and Chubb security guard identification tags, but was not one of the security staff involved in the applicant’s ejection. The applicant confronted Mr Powell and struck him in the head a number of times. After the victim fell to the ground, he continued to kick and…

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 Alexopoulos

Details

AGLC: R v Alexopoulos [2010] VSCA 52
Case: [2010] VSCA 52
Decision Date: 17 March 2010

CaseChat Overview and Summary

The case of R v Alexopoulos was before the court, involving the appellant who had been found guilty by a jury of causing injury recklessly and acquitted of intentionally damaging property. The verdicts were not deemed inconsistent, leading to the consideration of the appeal against both conviction and sentence. The appellant had his parole cancelled, which was an issue of contention in the appeal against sentence. The application for leave to appeal both the conviction and the sentence was refused.

The legal issues before the court were the consistency of the verdicts and the appropriate sentence for the appellant. The court needed to determine if the jury's verdicts were consistent and if the sentence imposed was appropriate considering the mitigating and aggravating factors. The court had to weigh the appellant’s youth and absence of subsequent offences against his continued problems with alcohol, lack of remorse, and the vicious nature of the offence. Additionally, the court needed to consider whether the sentence was proportionate and whether the principles of deterrence and moral culpability warranted any modification.

In its reasoning, the court found that the jury's verdicts were not inconsistent and were supported by the evidence. Regarding the sentence, the court applied the principles from R v Mangelen, considering the mitigating factors such as the appellant’s youth and absence of subsequent offences, and the aggravating factors such as his alcohol issues, lack of remorse, and the vicious nature of the offence. The court moderated the principles of specific and general deterrence due to the reduced moral culpability, but ultimately decided that the same sentence would be imposed. The court concluded that the sentence was proportionate and appropriate given the circumstances.

The court's final order was that the application for leave to appeal both the conviction and the sentence was refused. The conviction and sentence stood as determined by the jury and the sentencing judge. The court did not find any grounds to alter the outcome of the case based on the issues presented.

Orders