Legal Research
Cases
R v Katsoulas

R v Katsoulas

Case [2008] VSCA 278 19 December 2008

Criminal Liability

Sentencing

Breach of Contract

Repudiation & Termination

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 72 of 2007

THE QUEEN
	v
MARIO KATSOULAS

---

JUDGES:	NEAVE and REDLICH JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2008
DATE OF JUDGMENT:	19 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 278

---

CRIMINAL LAW – Sentence – Restored suspended sentence part of total effective sentence – Conspiracy – Substantive counts – Sentenced for offences not covered by the conspiracy – Delay – Failure to take account of lengthy period on bail – Progress towards rehabilitation – Delay resulting in additional element of punishment.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr S R Johns	Theo Magazis & Associates

NEAVE JA:

I have had the considerable advantage of reading in draft form the reasons for judgment of Redlich JA. For those reasons, I agree that the appeal should be allowed and the appellant re-sentenced in the manner proposed by his Honour.

REDLICH JA:

On the 19 March 2007 the appellant pleaded guilty in the County Court to a presentment containing one count of conspiracy (count 1), five counts of burglary (counts 2, 3, 4, 6 and 8), three counts of theft (counts 5, 7 and 9), and a discrete count of cultivating cannabis (count 10). The appellant was also dealt with in respect of a suspended sentence of six months’ imprisonment which was restored. The appellant was sentenced to 20 months’ imprisonment on the conspiracy count, 12 months on each burglary count, six months on each theft count, and one month in respect of cultivating cannabis. His Honour directed that four months on each of the five counts of burglary be served cumulatively with the sentence imposed on the count of conspiracy, and two months on each of the three counts of theft be served cumulatively with the sentence imposed on the count of conspiracy, resulting in a total effective sentence of three years and 10 months’ imprisonment. His Honour added the restored term of six months imprisonment to the total effective sentence thereby increasing it to four years and 4 months’ imprisonment. A period of three years was fixed before the appellant would be eligible for parole. The sentences are the subject of this appeal.

As s 31(6) of the Sentencing Act 1991 (Vic) requires the suspended sentence be served ‘immediately’[1] and cumulatively, upon any other terms of imprisonment previously imposed,[2] the learned judge was correct to treat the restored sentence in the manner in which he did and to determine the non parole period by reference to a total effective sentence which included the restored sentence. No argument to the

[1]Section 31(6)(a) thereby changes the order in which sentences would otherwise be required to be served pursuant s 15 of the Sentencing Act 1991 (Vic).

[2]Sentencing Act 1991 (Vic) s 31(6)(b).

contrary was advanced on the appeal. The same course had attracted no criticism in R v Aleksov.[3]

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 Katsoulas

Details

AGLC: R v Katsoulas [2008] VSCA 278
Case: [2008] VSCA 278
Decision Date: 19 December 2008

CaseChat Overview and Summary

The case of R v Katsoulas involved the defendant, Katsoulas, who faced sentencing for conspiracy and other related offences. The dispute centred on the imposition of a sentence that included a restored suspended sentence as part of the total effective sentence. The court had to consider whether the delay in sentencing had an impact on the punishment aspect of the sentence and whether the lengthy period the defendant had spent on bail should be taken into account. The substantive counts for which Katsoulas was sentenced did not fully cover the offences associated with the conspiracy, leading to a broader discussion on the appropriate punishment for the defendant.

The primary legal issues before the court were whether the delay in sentencing constituted an additional element of punishment and if the lengthy period on bail should be considered in calculating the total effective sentence. The court needed to weigh the delay against the defendant's progress towards rehabilitation and consider the implications of these factors on the overall sentence. Additionally, the court had to determine the correct approach to sentencing when dealing with offences that are part of a conspiracy but are not fully covered by the substantive counts.

The court found that the delay in sentencing did indeed constitute an additional element of punishment for the defendant. The lengthy period on bail was acknowledged as contributing to the delay, and this was factored into the court's considerations. The court recognised that while Katsoulas had made progress towards rehabilitation during this time, the delay resulted in an additional punitive aspect to his sentence. Consequently, the court adjusted the sentence to reflect these findings, ensuring that the total effective sentence was fair and just under the circumstances. The court's decision highlighted the importance of considering all relevant factors, including delays and progress towards rehabilitation, when determining the appropriate sentence in criminal cases.

Orders