R v Alexopoulos
[2010] VSCA 52
•17 March 2010
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[1]See Crimes Act 1958, s 421(2) repealed by Criminal Procedure Act 2009, s 422(2)(c).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 punch him, breaking his jaw in two places. This conduct was the basis for the applicant’s conviction on the offence of recklessly causing injury. Mr Powell went back to the security office and reported the assault and the police were called.
Count 3 alleged that after assaulting the victim the applicant broke two glass doors leading into the Casino. Mr Hatzimanolis phoned other friends who had been in the Mercury Lounge and he, the applicant and the other two men met up outside the Southernport entrance to the Casino.
After the assault on the victim, Chubb security guards (who provided security for the Casino complex) apprehended the applicant, who was behaving aggressively. The applicant was thrown to the ground and a DVD of the scene showed that an unidentified security guard kicked him. Mr Hatzimanolis, and another man, Daniel Petrides, were restrained.
Police attended the scene and an ambulance was called for the applicant, who had blood on his face and his T-shirt. The ambulance officer, Anthony Miller, spoke to the applicant, but he declined an offer to go to hospital. The other men were permitted to leave and the applicant was taken to the police station and interviewed.
In his police interview he said that he was leaving the Mercury Lounge when he was kicked four or five times to the face, dragged out back doors and repeatedly punched and left outside the back door. The interviewer told him that a video from inside the Mercury Lounge showed him struggling with security staff and he said the reason he could not remember doing so was because he was being kicked repeatedly. He said he could not recall anything about being taken down to the ground floor in the lift. Nor could he remember kicking the glass doors or punching the victim.
The applicant was aged almost 24 years at the time of offending and was 27 when he was sentenced. He began working full time at Hungry Jacks at the age of 16 after leaving school when he was in year 10. He rose to the level of store manager and worked in that role until being sentenced to a term of imprisonment in 2004.
Upon his release from custody, he worked in the hospitality industry and then as a labourer until 2007, when he moved to Geelong and was unemployed for one and a half years. During that time the applicant suffered from depression and took anti-depressant medication.
In the 12 months prior to committing the offences, the applicant was employed on a full time basis as a labourer in the construction of outdoor areas, annexes and pergolas. He no longer suffered from depression.
The applicant admitted 13 prior convictions, arising from four court appearances between 17 September 1998 and 29 June 2004. Ten of those convictions were for offences involving violence.[2]
[2]They are described in more detail below.
The appeal against conviction
Counsel’s submissions
Counsel for the applicant submitted that the verdicts were inconsistent[3] because the only contested issue on all the counts at trial was the applicant’s mental state. The Crown’s case against the applicant was that he had intentionally caused a serious injury to Mr Powell and had intentionally damaged the glass doors. The defence case was that the applicant suffered a head injury as the result of being punched by the security staff when he was being ejected from the Mercury Lounge and that he was not acting consciously and voluntarily when he hit and kicked the victim and broke the glass doors.
[3]MacKenzie v The Queen (1996) 190 CLR 348, 366-88.
Counsel submitted that defence counsel at trial had conceded that the victim’s injury was serious and was caused by the applicant, and that the damage to the glass doors was caused by the applicant. The judge’s jury charge had recognised that this was the case. In addition the evidence of David Devine and Osman Tahir (to which I refer below) permitted the jury to infer beyond reasonable doubt that the damage to the glass doors was caused by the applicant.
The judge had appropriately directed the jury on the relevant mental element required for the offences of causing serious injury intentionally or recklessly, and intentionally damaging property.[4] The acquittal of the applicant of the offence of intentionally damaging property (count 3) must therefore, it was said, have been based on the jury’s view that the Crown had failed to prove beyond reasonable doubt that the applicant was capable of forming the requisite intent for that offence. This was said to be logically inconsistent with the jury verdict on the alternative to count 2 which required the jury to find that the accused was nevertheless capable of forming the requisite intent to commit the offence of recklessly causing injury. Counsel further submitted that the jury’s verdict on count 3 could not be explained on the basis that they had shown mercy to the applicant.
[4]See Crimes Act 1958, s 197(4).
Counsel for the applicant supported his contention that the inconsistent verdict was a compromise by referring to the time taken by the jury to reach their verdicts. He pointed to the fact that after three hours of deliberation, the jury indicated that they were having difficulty and sent a note to the judge indicating that ‘[t]he jury believes that we will not be able to reach a unanimous verdict no matter how long we deliberate’. The jury continued with its deliberations the next day after receiving a perseverance direction from the judge. The day after that, the jury was given a majority verdict direction having deliberated for a total of ten hours and 32 minutes. The jury then returned its verdict about one hour later.
Counsel for the Crown submitted that the test to assess the factual inconsistency between jury verdicts on different counts is one of logic and reasonableness.[5]
[5]Counsel placed reliance on MacKenzie v The Queen (1996) 190 CLR 348 and MFA v The Queen (2002) 213 CLR 606, both applied in this Court in R v JA [2008] VSCA 169 and R v Cordell [2009] VSCA 128.
Counsel for the Crown said that the jury’s acquittal of the applicant on count 3 was not necessarily based on the applicant’s mental state. He submitted that it was only in relation to the recklessly causing serious injury count that the defence was that the accused was not acting consciously and voluntarily. Although the defence case on count 3 was primarily based on the claim that the applicant was not acting consciously or voluntarily, because of the blow to his head, the actus reus element was in issue with respect to that count as there was only circumstantial evidence indicating that the applicant had damaged the glass doors. In these circumstances it was not inconsistent for the jury to find the applicant not guilty of count 3, on the basis that the Crown failed to establish beyond reasonable doubt that the applicant damaged the glass doors, but guilty of the alternative offence to count 2. Thus the verdicts were not inconsistent.
Counsel submitted that it did not necessarily follow from the time taken by the jury to reach their verdicts that they were the product of compromise. Counsel said that it could clearly be inferred that one juror had adopted an early and intransigent position. This was because the verdict followed very shortly after the judge gave the majority verdict direction. The jury’s finding that the applicant had caused injury rather than serious injury could be seen as a merciful verdict.
The evidence
I discuss the evidence at trial only to the extent necessary to determine whether the complaint of inconsistent verdicts is made out.
The Crown called members of the Mercury Lounge security staff. Samantha Sleigh, general manager of the Mercury Lounge, Nigel Aquilina, the supervisor of the security team, and security guards at the nightclub, Motasam Omar, Jonathan Pickens and James Garner, gave evidence of the altercation that occurred in the Mercury Lounge and of what occurred while the applicant and Mr Hatzimanolis were being ejected. Mr Omar and Mr Garner saw the altercation in the Mercury Lounge and the latter said that he had escorted the applicant and another man (Mr Hatzimanolis) out the back door with other guards. When the applicant was taken out of the back door of the Mercury Lounge he had a bleeding nose and lip. He was offered first aid but refused it.
The security staff witnesses said that after the altercation occurred, one group of men was taken out the front doors of the Casino and the applicant and Mr Hatzimanolis were taken out the back of the Mercury Lounge, in accordance with procedures designed to keep conflicting groups apart. The men were then walked down a corridor, put in a lift and taken to street level, where they were let out.
While the men were being taken along the corridor and put into the lift they were shouting and swearing and were restrained by having their arms held. Mr Pickens said that he had pinned Mr Hatzimanolis against the wall before getting into the lift, but denied punching him. All of the security staff who were present denied that the men had been assaulted. Mr Aquilina said that the applicant had been told to put on his shirt, which had blood on it, before he was let out into the street and that he did so without any difficulty.
Damian Bevilacqua and Mr Hatzimanolis, who were friends or acquaintances of the applicant and were with him in the nightclub, were also called by the Crown. Mr Bevilacqua said that the applicant was drinking while he was in the nightclub. He saw an altercation involving some pushing and someone throwing a punch at the applicant which did not connect. He said that he did not see blood on the applicant in the night club but that he had blood on his T-shirt and a cut over his eye when they met later in the street. The applicant was ‘irate’ and aggressive, but Mr Bevilacqua had no difficulty understanding what he was saying. The witness then saw the Chubb security guards who were summoned after the attack on Mr Powell, and tried to keep the applicant away from them.
Mr Petrides gave evidence at the committal. His deposition and cross-examination were read into the trial record. He said he saw the applicant in the street after he had been evicted and observed that he had a cut on his eyebrow and lip, and blood smeared on his face. The applicant was yelling and screaming at the security guards. A few days afterwards the applicant told him over the phone that he had been assaulted by the security guards in a stair well or back room while he was being evicted.
Mr Hatzimanolis, who was evicted from the nightclub with the applicant, was unable to recall whether the applicant was drinking in the night club or what the argument involved. He said there was no pushing or fighting before security came over to them. He said that after they were taken out of the club he was hit on the head by one of the guards and forced into the lift. The applicant was behind him and he heard him yelling, and sounds of him being punched and kicked. A guard forced him to turn around to see what was happening and he saw two security guards holding the applicant and a third man punching him in the face. He then ‘saw him drop’ and yelled at the guards. He was approached by a guard who said they had knocked his friend down and would be letting them out shortly. Each of the security guards who were present when the men were being evicted denied hearing this statement. Mr Hatzimanolis was shown a video of security guards in the night club but was unable to identify which of them had made the threat, though he said one of them had ‘a strong resemblance’ to the man who had done so.
Mr Hatzimanolis said that after the men got out into the street, the applicant sat down with his back against a wall and was bleeding. He then phoned their friends and arranged to meet up with them at the front of the Casino. While he was on the phone he heard the sound of a window being smashed. At that time the applicant was behind him. He did not see a man in a dark suit (the victim was wearing a dark suit) walking towards them. He said that the applicant was staggering and appeared to be disoriented after they were evicted.
Police officers,[6] the ambulance paramedic[7] and Chubb security staff[8] who attended the scene outside the Casino after Mr Powell was assaulted were also called by the Crown. They said that the applicant appeared angry and aggressive, but apart from Ms Sarapuu, none of them observed anything suggesting that, shortly after the assault, the applicant was acting involuntarily.
[6]Senior Constable Andrew Carr and Senior Constable Anthony Harwood (the informant).
[7]Mr Miller.
[8]Barry Nugent, Nick Kladis, Ingrid Sarapuu. Chubb provided security for the Casino.
Ms Sarapuu said that the applicant and Mr Hatzimanolis were abusive and aggressive while the Chubb security staff were trying to restrain them and the applicant kept saying ‘I want to hurt youse’. His friends were trying to get him to leave the scene. She said the applicant then calmed down and became ‘chatty’ and then passed out for about 60 seconds. He twitched as if he was having a fit. Her manager requested an ambulance. After he had fallen to the ground, he got up and was again very aggressive.
Mr Miller, the ambulance paramedic noted that the applicant had a laceration to the left eye, a possible fractured nose and complained of pain in the testicle region. He assessed the applicant as about two or three out of ten for intoxication, with zero being sober and ten being unconscious. He assessed the applicant using the Glasgow Coma scale and rated him as having a score of 15, which was the most oriented a person could be. He noted that the applicant’s pupils were equal and reacting to light and that he had a normal breathing rate. He said that the applicant was ‘alert and orientated. He knew I was asking him questions. He just didn’t want to answer them’.
Mr Devine was an operations manager at the Casino. He witnessed the applicant assault the victim from a distance of about 30 metres. In examination-in-chief he said that he heard a loud bang coming from the direction of the glass doors shortly after the assault and that he had seen the applicant go in the direction of the doors. He observed that the glass doors were broken later in the morning. Defence counsel did not cross-examine Mr Devine on this point.
Mr Tahir was a taxi driver who witnessed the assault from a distance of about 20 metres. Before this, he had seen the applicant hitting walls and kicking a metal delivery gate. He described the applicant, who was bloodied, as being ‘upset and angry’ and said that he was ‘yelling and screaming and swearing’.
The Crown called Dr Shyaman Menon who examined the applicant in the Emergency Department of Sunshine Hospital on the afternoon of 15 April. His notes recorded that the applicant gave a history of being assaulted at the Casino and having lost consciousness. At the time he presented he had a mild headache and reported suffering nausea earlier in the day.[9] He had abrasions and bruising on his face and body. His injuries were treated and he was told to come back if his symptoms worsened. The next day he returned complaining of headache and dizziness. He had a CT scan which was normal.
[9]He also reported sore testicles, presumably as the result of being kicked outside the Casino.
Dr Daryl Nye, a neurosurgeon, gave expert evidence for the Crown. Dr Nye was provided with a police brief, depositions, DVD footage of the applicant, the report of the defence witness, the prosecution summary and the defence response. He was told that the applicant had complained to Sunshine Hospital staff of head injury with loss of consciousness and that a CT scan was done, with a normal result. Dr Nye expressed the opinion that the applicant had suffered a simple minor head injury and said that there was nothing in the evidence which suggested that the applicant had acted involuntarily in striking the complainant.
He viewed DVD footage of the scene which showed the applicant and the guards. It then showed the applicant collapsing to the ground and then kicking out or quivering. His opinion was that the applicant had fainted as a result of anxiety or excitement but did not consider that the applicant had suffered from an epileptic convulsion. He noted that in the DVD footage which showed the applicant doing up his shirt after he was evicted, he was acting purposefully and that this also applied to the other video footage of the applicant moving backwards.
The only witness for the defence was Mr Martin Jackson, a clinical neuro-psychologist who interviewed the applicant about two years after the incident. Mr Jackson had the summary of prosecution opening, depositions, photographs, the record of interview, the DVD footage and the statements of Mr Miller and Dr Nye, when he prepared his report. Mr Jackson expressed the view that the applicant was suffering from post-traumatic amnesia from the time he was hit on the head and that he was not acting voluntarily at the time of the assault. He said that this diagnosis was not inconsistent with the applicant scoring normally on the Glasgow Coma scale. The behaviour of the applicant when he did not respond to his friend’s attempts to get him to leave the scene was typical post-traumatic amnesic behaviour. He expressed the view that based on the evidence described above and the description of the applicant’s behaviour at the time and later during the police interview, he was not acting consciously or voluntarily when he assaulted the victim. Like Dr Nye, he did not consider that the DVD showed the applicant having a convulsion and did not regard it as having any bearing on his opinion that the applicant had post-traumatic amnesia.
In cross-examination, he agreed that the video showing the applicant outside the nightclub indicated that he was walking unaided and unrestrained with a normal gait and was not staggering or falling over and that his opinion was dependent on the applicant giving him an accurate history of his head injury.
Conclusion on conviction appeal
The test for determining whether a jury verdict on one count must be set aside, because it is inconsistent with a verdict on another count was set out by the High Court in MacKenzie v The Queen::[10]
[10](1996) 190 CLR 348, 366-8 (Gaudron, Gummow and Kirby JJ).
Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone[11] is often cited as expressing the test:[12]
[11](Unreported, Court of Criminal Appeal, Devlin J, 13 December 1954).
[12]See, eg, R v Hunt [1968] 2 QB 433, 438; R v Durante [1972] 3 All ER 962, 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995), vol 1, 4-457.
‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’
…
Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.[13] More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.[14] It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.[15] It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’
[13]R v Irvine [1976] 1 NZLR 96, 99; R v Morgan [1981] 2 NZLR 164, 168-9; R v Cooper (1993) 149 AR 207; Eugene G Ewaschuk, Criminal Pleadings and Practice in Canada (1983) §15.212, requiring that the verdicts be ‘so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion’: R v Peterson (1996) 106 CCC (3d) 64, 79; cf Hall v Poyser (1845) 153 ER 251; Bedford v Crapper [1949] 3 DLR 153.
[14]R v Zundel (1987) 35 DLR (4th) 338, 401-2, applying R v McShannock (1980) 55 CCC (2d) 53, 55-6; cf Mack v Elvy (1916) 16 SR (NSW) 313.
[15]R v Drury (1971) 56 Cr App R 104, 105.
Intervention by appellate courts is only justified if the verdicts cannot stand together in the sense that no reasonable jury could have arrived at the conclusion.
In R v Ware,[16] Hedigan AJA, with whom Winneke P and Hayne JA agreed, said that a factual inconsistency between verdicts arises only when ‘no reasonable jury, which had applied its mind properly to the facts of the case, could have arrived at the two different conclusions which it did’.[17]
[16][1997] 1 VR 647.
[17]Ibid 649.
In my opinion the applicant has not established that the applicant’s acquittal on count 3 and conviction on count 1 were such ‘an affront to logic and common sense’ that the two verdicts cannot stand together.[18]
[18]MacKenzie v The Queen (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ).
In his closing address, counsel for the applicant told the jury that:
You might also find, it’s again a matter for you, that there’s no – might not have any difficulty on all the inferences you’ve been asked to draw, all the circumstances, that Mr Alexopoulos is responsible for the broken windows that we see in the photographs. Again, they’re matters that you formally have to find, but again there’s no argument put, and I put no argument to you, that you couldn’t so find that. The issue is the capacity to form intent.
In her jury charge her Honour gave the usual direction that it was for the jury to find the facts and that they were not bound by any comments she might make about those facts. In directing the jury on count 3, her Honour said the following:
The second element that the prosecution must prove is that the accused damaged the doors of the casino. This is not in issue in this case. Mr Gwynn submitted that in all the circumstances you might not have difficulty finding that Mr Alexopoulos is responsible for the broken windows in the photographs in Exhibit A. The defence put no argument that you could not find that.
David Clifford Devine, operations manager at Crown Casino, said that at about 4 a.m. in the morning of Saturday, 15 April 2006, he went out the staff only double glass doors which led out to Whiteman Street and was walking east along Whiteman Street towards the main entrance, the south port entrance, which is located about 80 or 90 metres away on Whiteman Street. His evidence was that the glass doors were intact.
David Devine said that after the assault the male in the white shirt was joined by a man in the black shirt. They congregated for a few minutes and then crossed back over to the Whiteman Street side where David Devine was standing 30 or 40 metres away on the phone. At the same point David Devine heard a loud bang but he cannot recall whether it was immediately after the assault or when the man in the black shirt joined the man in the white shirt. The bang came from the direction of the glass doors that David Devine had exited earlier on. The man in the white shirt and the man in the black shirt were adjacent to those doors.
David Devine gave evidence that later in the morning the glass doors were broken. David Devine identified the glass doors as those depicted in Photographs 4 to 8 of Exhibit A. David Devine said that he saw the man in the white shirt in the vicinity of the glass doors but he did not actually see contact between the man in the white shirt and the doors but he heard a loud bang. David Devine said that the demeanour of the man was always quite aggressive in his mannerisms and how he was acting.
David Devine said that it is 80 metres from southern port to the glass doors, another 30 metres to the entrance to the car park and the office of Chubb Security is 30 metres down into the car park. The assault took place within 15 to 20 metres from the glass doors.
Her Honour summarised the defence position in relation to the question whether the damage to the glass doors was done intentionally. She said that:
The defence case is that the accused was unable to form the requisite intention because he was suffering from post traumatic amnesia and that his brain was not functioning properly. His actions were reactive and, as stated by Mr Jackson, people in post-traumatic amnesia do not know what they are doing.
Later in her jury charge her Honour summarised the elements of the offence and said that ‘if you find that any of these elements have not been proven beyond reasonable doubt’ the jury had to find the applicant not guilty of the offence of intentionally damaging the glass doors.
A majority of the jury rejected the applicant’s claim that he was not acting consciously and voluntarily when he recklessly caused injury to the victim. It was clearly open to the jury to find that the evidence of the applicant’s friends (and particularly of Mr Hatzimanolis) lacked credibility and to prefer the evidence of the security staff that the applicant was not hit on the head before he was evicted from the Casino and assaulted the victim.
Even if the jury accepted that such an assault occurred it was open to them to reject the evidence of Mr Jackson, accept Dr Nye’s evidence that the applicant was not suffering from post-traumatic amnesia when he assaulted Mr Powell and find beyond reasonable doubt that the applicant injured the victim recklessly.
Although the applicant’s primary defence was that he was not acting consciously and voluntarily when he broke the doors, it was clearly open to the jury to experience a reasonable doubt as to the actus reus for that offence. No witness saw the applicant break the glass doors. Mr Devine identified Mr Hatzimanolis as the other person who was adjacent to the door shortly before he heard the sound of a window breaking.
Accordingly there is no inconsistency between the verdict of not guilty on count 3 and guilty on count 2 and nothing to suggest that the verdict was the product of compromise. I am reinforced in that view by the trial judge’s report which said:
Ground 1(a) – inconsistent verdicts
…
At its highest, the Crown’s evidence was that Devine saw Alexopoulos in the vicinity of the glass doors contemporaneously to hearing a loud bang. The jury may not have been satisfied beyond reasonable doubt of the circumstantial reasoning of the Crown, namely that there was a loud bang and Alexopoulos was in the vicinity, and that therefore Alexopoulos must have caused the damage.
Further, although defence counsel did not contest what the Crown submitted, Alexopoulos denied causing damage in the police record of interview. When asked whether he had damaged the glass doors, Alexopoulos answered ‘Nah’.
Ground 1(b) – compromise
Recklessly causing injury was the statutory alternative to count 2 on the presentment and the jury found Alexopoulos guilty by a majority verdict. The jury unanimously found Alexopoulos not guilty of count 3 of damaging property belonging to another. This would appear to suggest that the jury independently considered each charge, as it is required to do. Further, it lends weight to the view that the jury was not satisfied beyond reasonable doubt that Alexopoulos damaged the glass doors.
I now turn to the appeal against sentence.
Grounds of appeal – sentence
The grounds of appeal were as follows:
1.The sentence of 12 months’ imprisonment with a non-parole period of 6 months’ imprisonment is manifestly excessive.
2.The learned sentencing judge erred in her findings as to the significance of specific and general deterrence as sentencing considerations.
3.The learned sentencing judge erred in categorizing the offence as [a] very serious offence.
4.That subsequent to sentence being imposed the applicant’s parole has been cancelled leading to a sentence which offends against principles of totality.
At the time the applicant was sentenced, he was on parole for previous offences.[19] Consistently with the decision of this Court in R v Piacentino[20] her Honour said she could not take account of the fact that his parole might be revoked so that he might have to serve the remainder of the previous sentence.
[19]R v Alexopoulos (Unreported, County Court of Victoria, Judge Lewitan, 10 September 2009) (‘Reasons’), [9]-[11].
[20](2007) 15 VR 501.
After sentence was passed on 10 September 2009, the applicant’s parole was cancelled. According to an Adult Parole Board Certificate provided to the Court he may now have to serve an additional sentence of 1 year, 11 months and 30 days from 23 September 2009, in addition to the sentence imposed by her Honour. His latest release date is now 9 September 2012, though the Parole Board could consider his eligibility for re-parole at an earlier date.
Evidence of the cancellation of the applicant’s parole is admissible as fresh evidence, which requires reconsideration of the sentence. Ground 4 is therefore made out and it is unnecessary for the applicant to make out any other ground of appeal. Nevertheless, I have taken account of the submissions made by counsel in relation to grounds 1, 2 and 3, in exercising the re-sentencing discretion.
Counsel’s submissions
Counsel for the applicant submitted that, although the jury did not accept that the applicant was acting involuntarily when he injured the victim, her Honour had accepted the submission that the applicant’s moral culpability was reduced because of his mental condition when he committed the offence.[21] I assume that this finding reflected her Honour’s view that the applicant’s judgment and self-control was affected to some extent by the injuries he suffered. Her Honour also accepted that the weight given to specific and general deterrence should be moderated under the
principles in R v Tsiaras[22] and R v Verdins.[23] It is therefore necessary to take these matters into account in re-sentencing.
[21]Reasons, [41].
[22][1996] 1 VR 398.
[23](2007) 16 VR 269.
As mitigating factors counsel relied on the applicant’s youth at the time of the offending, the fact that he had then had a full-time job and that his family supported him. Counsel submitted that the Court should give considerable weight to the delay of three years and four months between the offence and the consequent stress experienced by the applicant. He pointed out that the applicant had not been convicted of any offence involving violence in that period and relied on her Honour’s finding, that, on balance, the applicant has reasonable prospects of rehabilitation.[24]
[24]Reasons, [37].
Counsel for the Crown submitted that the delay between commission of the offence and sentence was caused by the time taken to obtain a report from the applicant’s expert witness, but conceded that the delay was a factor which must be taken into account in re-sentencing. He also conceded that the applicant’s youth and the fact that he had not committed offences involving violence during the period between the commission of the offence and sentence were important sentencing factors.
Nevertheless counsel for the Crown submitted that the offence should be regarded as a serious example of recklessly causing injury which had significantly affected the victim’s life. The applicant had prior convictions for offences involving violence, associated with consumption of alcohol. Although he had not been convicted of offences involving violence after committing these offences, he had been convicted in the Magistrates’ Court in April 2008 and April 2009 for driving while exceeding the prescribed concentration of alcohol. His excessive alcohol consumption cast doubt on his ability to refrain from offending.
Conclusion on sentencing appeal
The principle of totality requires the Court to consider whether, as a consequence of the cancellation of the applicant’s parole, the sentence imposed by her Honour, when combined with the term of imprisonment the offender will now be required to serve, has resulted in a term of imprisonment which is disproportionate to the seriousness of the relevant offences.
In R v Mangelen,[25] Redlich JA (with whom Ashley JA agreed) said that it should not be assumed that an offender who is re-sentenced following cancellation of parole relating to other offences will necessarily receive a reduction of the sentence against which he or she has appealed. In considering the issue of totality it is relevant that at the time the applicant committed these offences he was on parole for offences of causing serious injury and causing injury intentionally.[26] The nature of these offences and of other offences of violence committed by the applicant, was described by her Honour as follows:
The prosecutor referred to the offences which occurred on 26 November 2002. These offences included charges of causing serious injury recklessly, causing injury recklessly, two counts of unlawful assault, using a controlled weapon without excuse and also an assault by kicking. These offences were dealt with by the Frankston Magistrates’ Court on 2 September 2003. You chased the victim and struck him with a machete. The victim fell to the ground and you kicked him in the head. You then assaulted one of the victim’s friends and the second victim received severe injuries to his right eye socket and was knocked unconscious. You also knocked a female out of the way who seemed to be blocking your path.
On 14 January 2004 the Melbourne Magistrates Court dealt with offences which occurred on 8 September 2001 and involved two counts of causing injury recklessly and one count of assault by kicking. You struck the victim at Wild Bill’s Saloon Bar and Nightclub at Southland in the early hours of the morning at 7.05am. As a result of that blow, the victim had two metal plates inserted in his jaw. You assaulted the victim on a second occasion on 12 October 2001. On that second occasion he sustained bruising to the mouth and lip area.
On 29 June 2004 you were charged with causing serious injury intentionally and causing injury intentionally. The offences occurred on 11 October 2002 and again they occurred outside Wild Bill’s Saloon Bar and Nightclub at Southland. You went to the nightclub to seek out the victim with three other men. When you got to the nightclub, you spoke to a security guard and pointed out that the victim was 17 years old and should not have been there. As a result, the victim was asked to leave the nightclub. Once outside, you and another man assaulted the victim by punching and kicking him in the head and as a result the victim lost consciousness and fell to the ground. Once on the ground, you proceeded to kick the victim to the head. A witness intervened and as a result of that intervention, you punched that witness to the right cheek.[27]
[25][2009] VSCA 63.
[26]Reasons, [11].
[27]Ibid [21]-[23].
Although the applicant was young at the time of committing all of these offences and has not committed any offences involving violence subsequently, it is apparent that he still has problems with alcohol. Moreover he did not plead guilty to this offence. Even if he could not recall committing it, as he claimed, he showed little remorse for its effects on the victim.
The attack on the victim was a vicious one. Its effect was described in two victim impact statements, which were summarised by her Honour as follows:
Two victim impact statements have been filed which indicate that the victim of the crime has suffered very considerably. The victim’s jaw was broken in two places. He underwent three operations, including internal fixation of plates and a debridement due to an infection. He is in constant pain and cannot eat properly. He has lost feeling on the left side of his face and suffers from dental problems and headaches. He said that he finds it difficult to consume food and suffers a speech impediment. He has been diagnosed as suffering from post-traumatic stress disorder, anxiety and depression. He does ‘not feel safe anymore’. He said that he used to be a happy person but is now often moody and despondent. The assault has impacted greatly on his ability to work and his career in the security industry.[28]
[28]Ibid [12].
Although general and specific deterrence must be moderated to some extent in re-sentencing the applicant, I agree with her Honour that they must be given some weight,[29] as must denunciation of the applicant’s behaviour and protection of the community.[30]
[29]Ibid [38].
[30]See DPP (Vic) v Simpas [2009] VSCA 40, [13] (Nettle JA).
Having regard to the mitigating factors to which counsel for the applicant referred, and to the principle of totality, I would impose the same sentence on the
applicant as was imposed by the trial judge. Leave to appeal against sentence should therefore be refused.
REDLICH JA:
I agree for the reasons given by Neave JA that the applicant should be refused leave to appeal against conviction.
As to the appeal against sentence, it should not be assumed that because the applicant’s parole was cancelled after he had been sentenced on the present matters, that a reduced sentence should be imposed. This view was stated in R v Mangelen.[31] I agree with Neave JA for the reasons given that a different sentence should not be imposed and that leave should be refused.
HANSEN AJA
[31][2009] VSCA 63.
I agree with Neave JA.
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