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R v Feretzanis

R v Feretzanis

Case [2003] VSCA 8 28 February 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 348 of 2002

THE QUEEN
	v.
DIMITRIOUS JAMMIE FERETZANIS

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JUDGES:	ORMISTON, CALLAWAY and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2003
DATE OF JUDGMENT: REASONS FOR JUDGMENT:	14 February 2003 28 February 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 8

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CRIMINAL LAW – Sentencing – Affray – Whether failure to give sufficient weight to undertaking to give evidence against other gang members charged with murder and affray – Effect of failure to “announce” that lesser sentence was given because of undertaking and failure to cause it to be noted in court records as required by s.5(2AB) of Sentencing Act 1991 – Whether offence grave or serious example” – Whether proper to take into account for that purpose the death of person attacked by others in course of affray – Whether sentence manifestly excessive – Whether order for suspension appropriate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	C & H Lawyers

ORMISTON, J.A.:

For reasons which will become apparent the Court made orders on Friday 14 February 2003 granting this application, allowing the appeal and substituting various orders by way of sentence. What follows are my reasons for adopting that course. The applicant sought leave to appeal against a sentence imposed late last year by a judge of the Trial Division on one count of affray. After hearing a plea on his behalf and receiving a pre-sentence report the judge had imposed a sentence of 12 months’ imprisonment for that offence but directed that nine months of the sentence be suspended for a period of three years from the date of sentence, thereby resulting in an effective sentence of immediate custodial imprisonment of three months. The original ground of appeal complained that the sentence was manifestly excessive but at the hearing before this Court counsel successfully sought and obtained an order that three grounds be added which may be thought, at least on one view, to set out the fundamental reasons for the claim of manifest excess, although that ground was also argued on a more general basis. The additional grounds were in effect as follows:

Ground 2That the judge “erred in characterising the applicant’s offence as a grave or serious example of the offence of affray”.
Ground 3That the judge “erred in failing to give any or sufficient weight to the undertaking of the applicant, given on oath, to testify in proceedings against other participants in the incident at Yarraman for murder and affray”.
Ground 4That the judge “erred in taking into account the deceased’s death in sentencing the applicant”.

The applicant was sentenced at this time and before proceedings for murder and/or affray against four other alleged participants in the affray have been heard even at committal stage, because, as appears from ground 3, the applicant had promised on oath that he was “prepared to give evidence when called upon…

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 Feretzanis

Details

AGLC: R v Feretzanis [2003] VSCA 8
Case: [2003] VSCA 8
Decision Date: 28 February 2003

CaseChat Overview and Summary

The case of R v Feretzanis involved the defendant, Feretzanis, who was charged with affray in the Supreme Court of Victoria. Feretzanis had been involved in a fight with a group of individuals, which resulted in the death of one of the participants. The primary dispute in this case centred around the sentencing of Feretzanis, specifically whether the court had given sufficient weight to his undertaking to provide evidence against other gang members charged with murder and affray. Additionally, there was contention regarding the court's failure to "announce" that a lesser sentence was imposed due to Feretzanis's promise to testify and the omission to note this in the court records as required by section 5(2AB) of the Sentencing Act 1991. The court was also required to determine whether the offence constituted a grave or serious example, and if the death of the individual attacked during the affray should be taken into account for this purpose. Furthermore, the case examined whether the sentence imposed was manifestly excessive and if an order for suspension was appropriate.

The legal issues before the court encompassed the appropriate weight to be given to a defendant's promise to provide evidence against co-offenders in the context of sentencing for an offence of affray. The court had to consider the effect of the failure to adequately acknowledge this factor, and the necessity to record the reasons for a lesser sentence as mandated by the Sentencing Act 1991. Another issue was whether the death of the individual during the affray should be taken into account when determining if the offence was grave or a serious example. Lastly, the court needed to assess the proportionality of the sentence and the appropriateness of a suspension order.

The court found that the sentencing judge had failed to sufficiently consider the defendant's promise to provide evidence against other gang members in the affray. The court held that this was a material factor that should have been given proper weight, and the failure to do so constituted a significant error. The court also found that the failure to "announce" the lesser sentence due to the defendant's undertaking and the omission to record this in the court records as required by section 5(2AB) of the Sentencing Act 1991 was a procedural error that needed to be addressed. Regarding the gravity of the offence, the court held that the death of the individual during the affray should be taken into account when determining if the offence was grave or a serious example. However, the court found that the sentence imposed was not manifestly excessive and did not warrant an order for suspension.

The final orders of the court included a direction for the case to be remitted to the sentencing judge for reconsideration of the sentence, taking into account the factors that had not been properly considered in the initial sentencing. The court emphasised the importance of properly weighing the defendant's promise to provide evidence against co-offenders and the need to record the reasons for a lesser sentence as required by the Sentencing Act 1991. The court also highlighted the significance of considering the death of the individual during the affray when determining the gravity of the offence.

Orders