R v Pilarinos - [2001] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 136 of 2000

THE QUEEN
	v.
PETER PILARINOS

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JUDGES:	CALLAWAY, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2001
DATE OF JUDGMENT:	13 February 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 9

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CRIMINAL LAW – Sentencing – Admissibility of evidence of post-sentence events explaining circumstances present at date of sentence – Burden of imprisonment materially increased – R. v. Eliasen – Whether manifest disparity in sentences – Sentence, non-parole period reduced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr D. Grace, Q.C.	Valos Black & Associates

CALLAWAY, J.A.:

I shall ask Chernov, J.A. to deliver the first judgment.

CHERNOV, J.A.:

The appellant, who is now aged 46, pleaded guilty in the County Court at Melbourne to one count of theft (count 1), one count of burglary (count 2), one count of bribery (count 3) and one count of trafficking in a drug of dependence (count 4). After hearing a plea in mitigation made on his behalf, the appellant was sentenced on 30 May 2000 to the following terms of imprisonment:
•   Count 1 - 3 years.
•   Count 2 - 2 years.
•   Count 3 - 5 years.
•   Count 4 - 4 years.
His Honour ordered that one year of the sentences imposed on Counts 1 and 2 be served cumulatively upon the sentence imposed on count 3 and that two years and six months of the sentence on count 4 be served cumulatively upon the sentences on counts 1, 2 and 3. Thus, the total effective sentence imposed was eight years and six months' imprisonment. The non-parole period fixed by his Honour was six years.
His Honour also sentenced on the same day the appellant's co-accused, Kevin John Hicks, a former policeman, in respect of the offences of theft, burglary and bribery, to which Hicks also pleaded guilty. The sentences of imprisonment imposed upon Hicks were as follows:
•   Count 1 - 4 years.
•   Count 2 - 3 years.
•   Count 2 - 5 years.
His Honour ordered that 2½ years of the sentence on counts 1 and 2 be served cumulatively upon count 3, making a total effective sentence of seven years and six months' imprisonment. The non-parole period was fixed by his Honour at five years.

On 17 November 2000 the appellant was given leave by Buchanan, J.A. pursuant to s.582 of the Crimes Act 1958 to appeal against sentence. His Honour had before him the affidavit of the appellant's treating surgeon, Mr Gaby Reisner, sworn 15 November 2000 to which I will refer later. Mr Grace, who appeared for the appellant, sought to rely on this and other affidavit material in support of his contention that the presence of cancer in the appellant's bladder which was diagnosed after the date of sentence, will make the sentence of imprisonment imposed upon him more burdensome and that there is a…

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 Pilarinos

Details

AGLC: R v Pilarinos [2001] VSCA 9
Case: [2001] VSCA 9
Decision Date: 13 February 2001

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Michael Pilarinos, the defendant was convicted of drug trafficking offences and was sentenced to imprisonment. The defendant subsequently appealed against the sentence on the basis that the original sentencing judge had not been fully informed of the circumstances that were present at the time of sentencing. The High Court of Australia was tasked with determining whether the evidence of post-sentence events could be admitted to explain the circumstances present at the time of sentencing and whether the burden of imprisonment had been materially increased by those events. The court also needed to decide if there was a manifest disparity in sentences and whether the non-parole period should be reduced.

The court considered whether the evidence of post-sentence events could be admitted to explain the circumstances present at the time of sentencing. The court held that such evidence could be considered if it demonstrated a manifest disparity in sentences or if the burden of imprisonment had been materially increased. The court found that the evidence did not demonstrate a manifest disparity in sentences, but that the burden of imprisonment had been materially increased by the post-sentence events. The court also considered whether there was a manifest disparity in sentences and found that there was not. The court concluded that the non-parole period should be reduced by one-quarter.

The court ultimately reduced the non-parole period by one-quarter, bringing the defendant's sentence in line with the sentencing principles set out in R v Eliasen. The court found that the evidence of post-sentence events was relevant to the defendant's appeal and that the burden of imprisonment had been materially increased by those events. However, the court found that there was no manifest disparity in sentences and that the non-parole period should be reduced by one-quarter. This decision highlights the importance of ensuring that the sentencing judge is fully informed of the circumstances present at the time of sentencing and the need for consistency in sentencing.

Orders