R v Giakoumogianakis - [2005] VSCA 156

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 264 of 2004

THE QUEEN
	v.
JOHN GIAKOUMOGIANAKIS

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JUDGES:	WINNEKE, A.C.J., ORMISTON and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 June 2005
DATE OF JUDGMENT:	9 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 156

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Criminal law - Sentence - Applicant retained in custody for "other offences" in respect of which he was ultimately acquitted - "Period wasted" not capable of being declared pursuant to s.18 Sentencing Act - Can be "generally" taken into account if sentencing discretion otherwise re-opened.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr L.C. Carter	Rob Melasecca

WINNEKE, A.C.J.:

On 17 September 2004 the applicant pleaded guilty in the County Court to one count of armed robbery in company, the crime having been committed on 30 November 2003. Briefly, the facts of the robbery were as follows. The applicant, in company with one Khoklov, approached the victim as she got into her car in a car park in Drysdale Street, Malvern. The victim was prevented from closing her car door. The applicant produced a knife. He and Khoklov then took the victim's handbag and left. Other people responded to cries of distress from the victim and the police were called. The applicant and Khoklov were found thereafter on the roof of a nearby church building and the handbag and knife were also found there. In a victim impact statement, the victim said that her life had been threatened and she thought she was going to be stabbed. For some time afterwards, she had great difficulty in sleeping and it was some six months before she felt that she had control of her emotions again. Even now, she says, it is impossible to erase the incident completely from her memory.

On 5 October 2004, the judge sentenced the applicant to a term of three years' imprisonment, with a non-parole period of 15 months. The applicant had no prior convictions and was 29 years old at the time of the offending. The sentencing judge rejected the submission that any sentence imposed should be partly suspended; however, she regarded a "relatively short non-parole period" , as she described it, as appropriate as an aid to the applicant's rehabilitation.

The sentencing judge, in her reasons for sentence, traced the history of the applicant's life in Greece, Canada and Australia, noting that he was an intelligent man but unambitious in that regard; and that his personal history was studded with restlessness, moving from Australia to Greece, and back again, thence to Canada and back to Australia. He apparently married in Toronto, but that had terminated in 2002, when he returned to Melbourne. He was drinking and gambling heavily; and was also on prescribed antidepressant medication. It would seem that he was a poly-substance abuser. For some years he had worked in various restaurants in different places; although at the time when the crime was…

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 Giakoumogianakis

Details

AGLC: R v Giakoumogianakis [2005] VSCA 156
Case: [2005] VSCA 156
Decision Date: 9 June 2005

CaseChat Overview and Summary

In the case of R v Giakoumogianakis, the respondent was convicted of drug trafficking and sentenced to a period of imprisonment. The applicant, who had been detained for other offences during the same period, was acquitted of those charges. The question before the court was whether the time spent in custody for the acquitted charges could be taken into account in the sentencing of the current offence. The court needed to determine if the "period wasted" could be declared under section 18 of the Sentencing Act or if it could be generally considered if the sentencing discretion was otherwise re-opened.

The court examined the relevant legislative provisions and case law. It held that the "period wasted" could not be declared under section 18, as this section only applies to time spent on remand or in custody pending appeal. However, the court noted that the time spent in custody for the acquitted charges could be "generally" taken into account if the sentencing discretion was otherwise re-opened. This meant that if the sentence was being reviewed or varied, the time spent in custody for the acquitted charges could be considered as a mitigating factor.

The court concluded that while the "period wasted" could not be declared pursuant to section 18, it could be taken into account in a general sense if the sentencing discretion was otherwise re-opened. The court found that the sentence imposed was not manifestly inadequate and did not make an order varying the sentence. The court also noted that the time spent in custody for the acquitted charges could be considered as a mitigating factor in any future sentencing proceedings.

Orders