R v Apostolides

[2001] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 342 of 2000

THE QUEEN

v.

NICHOLAS JOHN APOSTOLIDES

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JUDGES:	WINNEKE, P., ORMISTON and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2001
DATE OF JUDGMENT:	20 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 166

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Criminal law - Sentence - Application for leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	Ms K.Robertson, Solicitor for Public Prosecutions
For the Applicant	In person

WINNEKE, P. (delivering the judgment of the Court):

1. The applicant, Nicholas John Apostolides, was sentenced in November of last year having pleaded guilty to a count of car theft and a count of armed robbery.  He was sentenced to six months on the count of theft and three years on the count of armed robbery, the total effective sentence therefore being three years.  The judge fixed a minimum period of two years before eligibility for parole, and he noted that the applicant has a fairly extensive criminal history.

1. The offences occurred on 25 March 2000.  The circumstances in which they occurred are fully set out in his Honour's reasons and no useful purpose, we think, will be served by extensively referring to them.  The fact is that on that day, and with an accomplice, the applicant robbed a Tattslotto agency in Yarraville, armed with various weapons including a blood-filled syringe.  Necessarily the circumstances of the robbery carried with them the usual consequences of terrified customers and staff.  The applicant and the accomplice did not manage to secure a great deal of money, more by way of luck than as a consequence of good management.  The car had been stolen to provide a getaway vehicle for the offenders.

1. As we have indicated to Mr Apostolides this morning, the task of this Court in an application for leave to appeal against a sentence as lenient as these sentences is a difficult one.  The leniency of the sentences reflects the nature of the material which was put before the judge, much of which it is unnecessary for present purposes to say anything about in this Court.  There were strong personal circumstances affecting the applicant that the judge was able to, and did, take into account, not the least of them being that he has two young children to whom he is very attached and who will suffer consequentially because of the term of imprisonment imposed upon him.

1. The applicant applied for leave to appeal earlier this year to Charles, J.A. and that leave was refused, but, notwithstanding the refusal, the applicant, in accordance with his rights, has elected to have the matter referred to this Court.  Mr Apostolides, I think, understands, it having been explained to him, that this Court has a limited function, that function being limited to interfering with sentencing discretions exercised by judges in the County Court only if error is demonstrated or, alternatively, if the sentence is just so heavy as to immediately raise the flag of manifest excess.

1. We have come to the conclusion that error has not been demonstrated in the judge's sentencing reasons.  Nor can we say, notwithstanding what the applicant has said to us this morning, that the sentences imposed by the judge are so excessive as to be seen as being manifestly excessive.

1. Accordingly, for those reasons, as we have indicated to the applicant, we are not in a position to grant his application for leave to appeal, and therefore the application will be dismissed.