R v Fertzanis - [2002] VSC 582

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1486 of 2002

THE QUEEN

DIMITRIOUS FERETZANIS

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2002
DATE OF SENTENCE:	23 December 2002
CASE MAY BE CITED AS:	R v Feretzanis
MEDIUM NEUTRAL CITATION:	[2002] VSC 582

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Criminal law – sentencing – affray – serious affray – man clubbed to death with an iron pipe by another participant - indicative of seriousness of offence - first time offender – previously of good character – low probability of re-offending – genuine remorse – early plea of guilty – cooperation with the police – counterbalancing need to manifest denunciation and for general deterrence – Sentence of 12 months imprisonment, of which nine months to be suspended for three years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. S. Pullen	Solicitor for Public Prosecutions
For the Offender	Mr. P.J. Morrisey	C & H Lawyers

HIS HONOUR:

Dimitrious Feretzanis. On 6 November 2002 you were arraigned on a charge that you did at Noble Park on 8 March 2002 unlawfully fight and make an affray. To that charge you pleaded guilty and it is now for me to sentence you.

The facts

The facts surrounding the offence are complex, but in summary it may be said that the affray was the result of a public slanging match and following that a pitched battle between two groups of alcohol affected young men of whom you were one. In the course of the battle, Luke Peter Krezalek, who was a member of the group opposed to yours, was so severely clubbed with a metal pipe that he sustained multiple fractures of the skull and internal haemorrhaging and from those injuries he died.

A number of the persons who took part in the affray have been charged over the affray, and some have also been charged with the murder of the deceased. The involvement of each of them varies considerably. You have only ever been charged with one count of affray and, in accepting your plea of guilty to that count, the Crown accepts that your degree of involvement fell short of what would be required to establish that you had intent to kill or to inflict really serious physical injury or that you acted in concert with or aided and abetted those who caused the death of the deceased.

Some others who have been charged are Tom Clappers, who has been charged with murder and affray; Keorasmey Teap, who has been also charged with murder and affray; Bret Kainamu, who has been charged with affray; and Steven Crick has also been charged with affray. A contested committal hearing is listed to be heard in the Magistrates' Court in relation to those and other co‑offenders on 17 February, 2003.

You were born on 14 August 1981 and at the time of the offence you were 20 years of age and living with your parents in Carnegie. Clappers was 18…

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 Fertzanis

Details

AGLC: R v Fertzanis [2002] VSC 582
Case: [2002] VSC 582
Decision Date: 23 December 2002

CaseChat Overview and Summary

The appellant, Fertzanis, was involved in an incident in which a man was fatally injured by an iron pipe wielded by another participant in an affray. Fertzanis was charged with serious affray and faced the Supreme Court of Victoria. The central issue before the court was to determine an appropriate sentence considering the severity of the crime, the appellant's background, and the mitigating factors presented.

The court examined the gravity of the offence, the role of the appellant in the affray, and the circumstances leading up to the fatal incident. The appellant, a first-time offender with a previously good character, demonstrated genuine remorse and cooperated with police investigations. The court balanced the need to manifest denunciation and deter future offences against the personal circumstances of the offender. It considered the low probability of re-offending and the early plea of guilty. The court concluded that while the offence was serious, the unique personal circumstances and mitigating factors warranted a sentence that accounted for these aspects.

After weighing the aggravating and mitigating factors, the court sentenced Fertzanis to 12 months imprisonment, with nine months of this sentence to be suspended for three years. This decision reflected the court's consideration of the seriousness of the crime, the appellant's background, and the need to achieve a balance between denunciation, deterrence, and personal circumstances. The final orders of the court provided clarity on the sentence and the conditions of the suspended sentence, ensuring all parties understood the legal outcome.

Orders