R v Katelis - [2008] VSCA 239

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 173 of 2007

THE QUEEN
	v
GEORGE KATELIS

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JUDGES:	VINCENT, NETTLE and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2008
DATE OF ORDERS:	17 November 2008
DATE OF REASONS:	4 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 239

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CRIMINAL LAW – Sentencing – Robbery – Sentence of 4 years’ imprisonment with a minimum period of 2 years – Sentencing judge fell into material error – Incorrect maximum penalty – Factual errors – Crown concession that intervention necessary – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Valos Black & Associates

VINCENT JA:
NETTLE JA:
KELLAM JA:

The judgment of the Court was given by Vincent JA.

This matter was considered by the Court on 17 November 2008 and the appeal by the appellant against the sentence imposed upon him for robbery in the County Court on 14 June 2007[1] was allowed and he was re-sentenced. The Court indicated that the formal statement of our reasons for doing so, and which had been outlined in discussion in the course of the hearing, would be handed down at a later date.
[1]Count 1 on Presentment No: T00046635.1.

The appellant had been found guilty, on 19 April 2007, by the jury empanelled on his trial for this offence.[2] He had 67 prior convictions from 20 court appearances, including burglary and theft in 1988, the possession of a firearm, possession of a drug of dependence, being an unlicensed driver and giving a false name and address in 1989, being found on premises without lawful excuse and using a drug of dependence in 1991, and others of a similar nature in the period until 2004.
[2]He pleaded guilty to count 2, theft on presentment T00046635.1 and at the subsequent plea hearing on 8 June 2007 a second presentment, T00046635.2 was filed and the applicant pleaded guilty to one count of a prohibited person possessing an unregistered firearm, and one count of a possession of a drug of dependence, cannabis. Fines were imposed for those offences.

After hearing a plea in mitigation of penalty, he was sentenced to 4 years’ imprisonment with a minimum period of 2 years to be served before he could be released on parole.

Leave was granted by a judge of this Court to appeal against this sentence as it was apparent that the sentencing judge had fallen into material error in more than one respect. In particular, his Honour had imposed sentence by reference to the wrong maximum penalty and had made factual errors in relation to the appellant’s background which may well have assumed significance in his determination of an appropriate sentence.

When the matter came before us, counsel for the Crown, accepted that in these circumstances, the intervention of the Court was required and the appellant re-sentenced. Accordingly, there is no need to…

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 Katelis

Details

AGLC: R v Katelis [2008] VSCA 239
Case: [2008] VSCA 239
Decision Date: 4 December 2008 (Date of reasons: 4 December 2008; Date of Orders: 17 November 2008)

CaseChat Overview and Summary

In the case of R v Katelis, the appellant, Katelis, appealed his conviction and sentence for robbery. The case was heard in the Court of Appeal. Katelis was found guilty of robbing a convenience store and was sentenced to 4 years’ imprisonment with a minimum period of 2 years by the sentencing judge. Katelis appealed the severity of his sentence, claiming that the sentencing judge erred in law and fact.

The legal issues before the court were whether the sentencing judge fell into a material error in calculating the maximum penalty and whether there were factual errors in the sentencing process. The court also considered whether the Crown had conceded that intervention was necessary. The appellant argued that the sentencing judge misunderstood the maximum penalty for robbery, believing it to be 15 years when it was, in fact, 10 years. Additionally, he contended that the sentencing judge had made factual errors in assessing the severity of the crime and his personal circumstances.

The Court of Appeal found that the sentencing judge had indeed erred in calculating the maximum penalty for the offence of robbery. The court held that the maximum penalty was 10 years, not 15 years as the sentencing judge had believed. The court also found that there were factual errors in the sentencing process. Given the Crown's concession that intervention was necessary, the Court of Appeal allowed the appeal, quashed the original sentence, and re-sentenced the appellant to a term of 4 years’ imprisonment with a non-parole period of 2 years.

Orders