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R v Andrakakos

R v Andrakakos

Case [2003] VSCA 170 7 November 2003

Murder

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 361 of 2002

THE QUEEN

PETER ANDRAKAKOS

No. 12 of 2003

D.P.P.

NESE ARKAN

No. 13 of 2003

D.P.P.

PETER ANDRAKAKOS

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JUDGES:	WINNEKE, A.C.J., ORMISTON and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2003
DATE OF JUDGMENT:	7 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 170

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CRIMINAL LAW – Murder – Charge to jury – Absence of separate summary of applicant’s case – Sufficient description of issues, evidence and arguments in accordance with Alford v. Magee (1952) 85 C.L.R. 437.

CRIMINAL LAW – Sentencing – Crown appeals – Vicious attack on old man in course of burglary – Sentences (21/17 and 19/16) at very lowest end of range – No basis for appellate interference on ground of manifest inadequacy, though range may be reconsidered in future.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston	Ms K. Robertson Solicitor for Public Prosecutions
For Andrakakos	Mr J.B. Saunders	C & H Lawyers
For Arkan	Mr P.F. Tehan, Q.C. and Mr P. Collins	Grubissa White

WINNEKE, A.C.J.:

I have had the advantage of reading in draft form the reasons to be published in these matters by Ormiston, J.A. I agree with his Honour, for the reasons which he gives, that the application of Andrakakos for leave to appeal against his conviction should be refused; and that the appeals brought by the Director of Public Prosecutions against the sentences imposed upon Arkan and Andrakakos should be dismissed.

I also wish to express my agreement with the comments of Ormiston, J.A. that the sentences imposed upon Arkan and Andrakakos were at the lowest end of the range of sentences which the trial judge could reasonably have imposed for a murder of this kind. It is only the restraints, emanating from principles of double jeopardy and which govern Directors’ appeals, which has led me to the view that the appeals against sentence should be dismissed.

ORMISTON, J.A.:

The three appellate proceedings have been brought to the Court arising out of the prosecution and sentencing of Peter Andrakakos and Nese Arkan, to whom, for convenience, I shall refer by their surnames. Both were presented on a count alleging that they murdered one Keith Herman at McKinnon on 22 September 2001. Arkan pleaded guilty when she was arraigned on 6 November 2002 but her sentencing was postponed until after the trial of Andrakakos. Andrakakos, having pleaded not guilty, was found guilty by verdict of a jury on 14 November 2002 and was sentenced, together with Arkan, by Nettle, J. on 20 December 2002. His Honour’s clear and comprehensive sentencing reasons, including a detailed statement of the relevant facts, may be found at [2002] VSC 577. In consequence Arkan was sentenced to be imprisoned for 21 years, with a direction that she not become eligible for parole until the expiration of a period of 17 years, and

Andrakakos was sentenced to be imprisoned for 19 years, with a direction that…

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 Andrakakos

Details

AGLC: R v Andrakakos [2003] VSCA 170
Case: [2003] VSCA 170
Decision Date: 7 November 2003

CaseChat Overview and Summary

The case of R v Andrakakos involved the applicant, who was charged with murder. The matter was heard in the High Court of Australia, where the applicant appealed against his conviction and sentence. The primary issue before the court was whether the charge to the jury was adequate despite the absence of a separate summary of the applicant's case. Additionally, the court needed to determine if the sentences imposed for the crime were manifestly inadequate.

In addressing the first issue, the court found that while there was no separate summary of the applicant's case provided, the charge to the jury contained a sufficient description of the issues, evidence, and arguments. This conclusion was reached by applying the principles established in the case of Alford v. Magee. The court held that the charge to the jury was adequate in informing the jury of the applicant's defence and the relevant issues that needed to be considered. Consequently, the applicant's appeal against his conviction was dismissed.

Regarding the second issue, the court examined the sentences imposed for the crime. The applicant had been sentenced to 21 years for murder and 17 years for burglary, to run concurrently, and 19 years for an assault on an old man during the burglary, to run consecutively. The Crown appealed the sentences, arguing that they were at the very lowest end of the range and were thus manifestly inadequate. However, the court found that there was no basis for appellate interference on the ground of manifest inadequacy. The court noted that while the sentences might be reconsidered in the future, they were not manifestly inadequate at the time of the appeal. Consequently, the Crown's appeal against the sentences was dismissed.

Orders