R v Margaritis - [2013] QCA 401

SUPREME COURT OF QUEENSLAND

CITATION:

R v Margaritis [2013] QCA 401

PARTIES:

R
v
MARGARITIS, Luke Euthimios
(applicant)

FILE NO/S:

CA No 75 of 2013
DC No 8 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2013

JUDGES:

Muir and Gotterson JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant leave to appeal against sentence.1.

Allow the appeal against sentence.2.

Substitute for the sentence imposed on Count 1 on the indictment, a sentence of four years imprisonment.3.

Otherwise dismiss the application.4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was a teacher at the secondary school where the complainant was a pupil – where the applicant was found guilty of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years with a circumstance of aggravation, nine counts of indecent treatment of a child under 16 years, and one count of supplying dangerous drugs to a minor – where the applicant was sentenced to five years imprisonment for the maintaining offence and lesser concurrent sentences for the remaining offences – where the applicant contends that the sentence is manifestly excessive and that the learned sentencing judge erred in sentencing on the basis that it was “a special case” – where the trial judge said “that this is a special case because of the very serious effect the offending has had on your victim” in sentencing the applicant – where the applicant contended that the learned trial judge had treated the victim impact statement akin to expert evidence that the offending was the sole cause of the totality of the impacts recorded in it by the complainant, notwithstanding evidence of the complainant’s troubled childhood – where the prosecutor at sentence submitted that the sentence imposed should be not less than three years imprisonment – where the applicant’s counsel submitted that the appropriate period of imprisonment was three years – whether the sentence imposed was manifestly excessive – whether the learned sentencing judge erred in sentencing the applicant on the basis that it was “a special case”

Criminal Code 1899 (Qld), s 210(1), s 229B
Drugs Misuse Act 1986 (Qld), s 6(2)(a)

R v C[1994] QCA 318, cited
R v Goodman; ex parte Attorney-General (Qld) [1996] QCA 415, cited
R v HAN (2008) 184 A Crim R 153; [2008] QCA 106, cited
R v L [2002] QCA 268, cited
R v L [1996] QCA 316, cited
R v M [1994] QCA 47, cited
R v May[1999] QCA 127, cited
R v Morgan; ex-parte Attorney-General (Qld) [1996] QCA 397, cited
R v Singh [2006] QCA 71, cited

COUNSEL:

S A Lynch for…

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 Margaritis

Details

AGLC: R v Margaritis [2013] QCA 401
Case: [2013] QCA 401
Decision Date: 20 December 2013

CaseChat Overview and Summary

The applicant was convicted of multiple offences, including maintaining an unlawful relationship of a sexual nature with a child under 16 years, and supplying dangerous drugs to a minor. The applicant appealed against the sentence, arguing that it was manifestly excessive and that the trial judge erred in treating the case as "special" due to the victim's troubled childhood. The court was required to determine whether the sentence was manifestly excessive and whether the trial judge had erred in considering the case as "special."

The court considered the arguments presented by both parties. The applicant's counsel submitted that the sentence imposed was manifestly excessive and that the trial judge had erred in considering the case as "special." The prosecutor argued that the sentence should not be less than three years imprisonment. The court noted that the trial judge had considered the impact of the offending on the victim but had not adequately considered the evidence of the complainant's troubled childhood. The court found that the sentence imposed was manifestly excessive and that the trial judge had erred in considering the case as "special."

The court granted leave to appeal against sentence and allowed the appeal against sentence. The court substituted a sentence of four years imprisonment for the maintaining offence, and dismissed the application otherwise. The court found that the sentence imposed was manifestly excessive and that the trial judge had erred in considering the case as "special." The court considered the evidence of the complainant's troubled childhood and found that it should have been given greater weight in the sentencing process. The court also noted that the sentence imposed was disproportionate to the sentences imposed on other offenders who had committed similar offences.

The court ordered that leave to appeal against sentence be granted, the appeal against sentence be allowed, and that a sentence of four years imprisonment be substituted for the sentence imposed on Count 1 on the indictment. The application was otherwise dismissed.

Orders

Orders of the court

Grant leave to appeal against sentence.1.

Allow the appeal against sentence.2.

Substitute for the sentence imposed on Count 1 on the indictment, a sentence of four years imprisonment.3.

Otherwise dismiss the application.4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Margaritis [2013] QCA 401
PARTIES:	R v MARGARITIS, Luke Euthimios (applicant)
FILE NO/S:	CA No 75 of 2013 DC No 8 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2013
JUDGES:	Muir and Gotterson JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Grant leave to appeal against sentence.1. Allow the appeal against sentence.2. Substitute for the sentence imposed on Count 1 on the indictment, a sentence of four years imprisonment.3. Otherwise dismiss the application.4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was a teacher at the secondary school where the complainant was a pupil – where the applicant was found guilty of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years with a circumstance of aggravation, nine counts of indecent treatment of a child under 16 years, and one count of supplying dangerous drugs to a minor – where the applicant was sentenced to five years imprisonment for the maintaining offence and lesser concurrent sentences for the remaining offences – where the applicant contends that the sentence is manifestly excessive and that the learned sentencing judge erred in sentencing on the basis that it was “a special case” – where the trial judge said “that this is a special case because of the very serious effect the offending has had on your victim” in sentencing the applicant – where the applicant contended that the learned trial judge had treated the victim impact statement akin to expert evidence that the offending was the sole cause of the totality of the impacts recorded in it by the complainant, notwithstanding evidence of the complainant’s troubled childhood – where the prosecutor at sentence submitted that the sentence imposed should be not less than three years imprisonment – where the applicant’s counsel submitted that the appropriate period of imprisonment was three years – whether the sentence imposed was manifestly excessive – whether the learned sentencing judge erred in sentencing the applicant on the basis that it was “a special case” Criminal Code 1899 (Qld), s 210(1), s 229B Drugs Misuse Act 1986 (Qld), s 6(2)(a) R v C[1994] QCA 318, cited R v Goodman; ex parte Attorney-General (Qld) [1996] QCA 415, cited R v HAN (2008) 184 A Crim R 153; [2008] QCA 106, cited R v L [2002] QCA 268, cited R v L [1996] QCA 316, cited R v M [1994] QCA 47, cited R v May[1999] QCA 127, cited R v Morgan; ex-parte Attorney-General (Qld) [1996] QCA 397, cited R v Singh [2006] QCA 71, cited
COUNSEL:	S A Lynch for…