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R v Ioannou

R v Ioannou

Case [2007] VSCA 277 4 December 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 217 of 2007

THE QUEEN
	v
JOHN IOANNOU

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JUDGES:	CHERNOV, VINCENT and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2007
DATE OF ORDERS:	18 October 2007
DATE OF JUDGMENT:	4 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 277

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CRIMINAL LAW – Sentence – Restoration of suspended sentence – Section 31(5), (5A) Sentencing Act 1991 – Plea bargain – Agreement between Director and legal representative as to plea of guilty to breaching offences – Director undertaking to submit exceptional circumstances existed – Whether exceptional circumstances making it unjust to restore sentence – R v Steggall (2005) 157 A Crim R 402 considered – Combination of circumstances exceptional – Appeal allowed – No order made as to restoration of sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr O P Holdenson QC	Stephen Andrianakis & Associates

CHERNOV JA:

I agree with Redlich JA that the Court made the orders in this matter on 18 October 2007 for the reasons that he gives.

VINCENT JA:

I agree with Redlich JA and I do so for the reasons advanced by him in his judgment.

REDLICH JA:

This was an application for leave to appeal from the restoration of a sentence of imprisonment pursuant to s 31(5)(a) of the Sentencing Act 1991 (Vic).

Section 31(1) of the Act provides that if during the period of a suspended sentence the offender commits another offence punishable by imprisonment, a court, may in the circumstances prescribed proceed to exercise any power conferred by sub-s (5). Sections 31(5) and 31(5A) provide:

(5)If on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a level 10 fine and in addition must -
(a)restore the sentence or part sentence held in suspense and order the offender to serve it; or
(b)restore part of the sentence or part sentence held in suspense and order the offender to serve it; or
(c)in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the date of the order under this sub-section; or
(d)make no order with respect to the suspended sentence.

(5A)Despite anything to the contrary in sub-section (5), if on the hearing of a charge the court finds the offender guilty of the offence it must, in addition to any fine it may impose under sub-section (5), exercise the power referred to in paragraph (a) of that sub-section unless it is of the opinion that it would be unjust to do so in view of any exceptional

circumstances which have arisen since the order suspending the sentence was made.

On 17 October 2003 the appellant pleaded guilty to a six-count presentment which contained five counts alleging offences against the appellant’s wife. They were false imprisonment, stalking, recklessly causing injury, common…

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 Ioannou

Details

AGLC: R v Ioannou [2007] VSCA 277
Case: [2007] VSCA 277
Decision Date: 4 December 2007

CaseChat Overview and Summary

The case of R v Ioannou involved the respondent, Ioannou, and the Crown, with the dispute centering around the restoration of a suspended sentence under Sections 31(5) and (5A) of the Sentencing Act 1991. The matter was heard in the Court of Appeal. Ioannou had entered into a plea bargain with the Director, agreeing to plead guilty to breaching offences, with the Director undertaking to submit that exceptional circumstances existed to justify the non-restoration of the sentence. The primary legal issues before the court were whether the combination of circumstances presented by Ioannou constituted "exceptional circumstances" within the meaning of Section 31(5A) of the Sentencing Act, and whether it was unjust to restore the sentence in light of these circumstances.

The court considered the nature of exceptional circumstances and examined the precedent set in R v Steggall. The court noted that exceptional circumstances must be exceptional in the sense that they should be rare and not typically encountered. The court also recognised that the combination of circumstances must be considered as a whole. In this instance, the court found that the combination of Ioannou's circumstances did indeed constitute exceptional circumstances, making it unjust to restore the sentence. The court emphasised that the decision hinged on the particular facts and circumstances of Ioannou's case, highlighting the need for a flexible and contextual approach in determining what constitutes exceptional circumstances.

Given that the court found the combination of circumstances to be exceptional, the appeal was allowed. The court held that it was not unjust to restore the sentence in Ioannou's case, and thus no order was made as to the restoration of the sentence. The decision underscores the importance of a nuanced and fact-specific assessment when evaluating whether exceptional circumstances exist under Section 31(5A) of the Sentencing Act. The outcome also reinforces the principle that the restoration of a suspended sentence is not an automatic process but requires careful consideration of the unique circumstances of each case.

Orders