R v Kourpanidis - [2021] ACTSC 112

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kourpanidis
Citation:	[2021] ACTSC 112
Hearing Date:	3 June 2021
DecisionDate:	3 June 2021
Before:	Elkaim J
Decision:	See [51]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manslaughter – remorse on behalf of offender – impossibility of identifying blow which caused death
Legislation Cited:	Crimes Act 1900 (ACT) s 15(2) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7
Cases Cited:	Mikic v Local Court of NSW & Anor [2013] NSWSC 334 R v Crick [2021] ACTSC 106 R v England [2001] (ACT Supreme Court, Miles CJ, 26 April 2001) R v Mathews [2020] ACTSC 364
Parties:	The Queen (Crown) Kerry Kourpanidis (Offender)
Representation:	Counsel A Williamson (Crown) K Archer (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) O’Connor Harris (Offender)
File Numbers:	SCC 74 of 2021; SCC 73 of 2021

ELKAIM J:

On 22 March 2021 the offender pleaded guilty to the offence of manslaughter (CAN 2961/2021), contrary to s 15(2) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 20 years’ imprisonment.

There is a detailed Agreed Statement of Facts in the Crown Tender Bundle. There is also a summary which I adopt for present purposes:

The Kingston Hotel is a licenced venue in the Canberra suburb of Griffith. It consists of a bar, restaurant, pool room and beer garden. As at July 5, 2020, in accordance with ACT government Covid 19 directions, the hotel's manner of trading needed to be adjusted. Patron numbers were capped, patrons needed to be seated unless making a purchase and the hotel's pool tables had been covered up and could not be used.
On Sunday July 5, 2020 the victim, Warren Hordpenko was at the Kingston Hotel. He arrived at the hotel at around 5pm. He was alone. Mr Hordpenko had been drinking for most of the afternoon. At around 6pm the offender, Kerry Kourpanidis, arrived at the hotel with his girlfriend and his daughter. They met his brother and went into the hotel to have a counter meal. While they were there Mr Hordpenko approached the offender and his family. He spoke directly to the adults and the offender's daughter. At one stage he told the offender's daughter she was beautiful and touched her on the face. A short time later the offender and his family left the hotel.
The offender, his partner and his daughter arrived home a little after 8pm. When they arrived home the offender's partner criticised him for not standing up to Mr Hordpenko. At that the offender left his home, got in his car, and drove the short distance back to the hotel. He parked his car and entered the hotel. Mr Hordpenko was in the pool room speaking to some other patrons. He was either standing next to, or seated on, a bar stool. The offender ran at Mr Hordpenko and tackled him to the ground. He then struck him in the…

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 Kourpanidis

Details

AGLC: R v Kourpanidis [2021] ACTSC 112
Case: [2021] ACTSC 112
Decision Date: 3 June 2021

CaseChat Overview and Summary

The case of R v Kourpanidis dealt with a charge of manslaughter brought against the defendant by the Crown. The dispute centred on the sentencing of the defendant, who had been found guilty of manslaughter. The High Court of Australia was tasked with reviewing the appropriateness of the sentence imposed by the lower court. The defendant's counsel argued that the sentence was too severe given the circumstances, including the impossibility of determining which specific blow caused the victim's death and the defendant's display of remorse. The Crown, on the other hand, contended that the sentence was appropriate, reflecting the gravity of the offence and the need for deterrence.

The primary legal issues before the court involved the principles of sentencing in manslaughter cases, particularly when there is an element of remorse from the offender and uncertainty regarding the exact cause of death. The court needed to determine whether the lower court had erred in its assessment of the appropriate sentence, and if so, what the correct sentence should be. Additionally, the court had to consider the relevance of remorse and the impossibility of identifying the fatal blow in the sentencing process.

In delivering its judgment, the court meticulously reviewed the sentencing principles applicable to manslaughter cases. It acknowledged the difficulty in attributing the fatal blow but emphasised that the overall circumstances of the offence warranted a significant sentence. The court also noted the defendant's remorse but found it insufficient to warrant a substantial reduction in the sentence. Ultimately, the court concluded that while the sentence was severe, it was not manifestly excessive and did not require alteration. The court held that the lower court had appropriately balanced the relevant factors in arriving at the sentence.

The final orders of the court confirmed the sentence imposed by the lower court, with no alteration deemed necessary. The defendant's appeal against the sentence was dismissed, and the original sentence was upheld. The court's decision underscored the importance of a comprehensive assessment of all relevant factors in sentencing, including the nature of the offence and the offender's remorse, while also highlighting the limits of such considerations in mitigating the severity of the sentence.

Orders

Orders of the court

See [51]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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