R v Theodoropoulos - [2016] HCATrans 147

[2016] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M18 of 2016

B e t w e e n -
THE QUEEN
Applicant
and
GEORGE THEODOROPOULOS
Respondent
Application for special leave to appeal

BELL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 17 JUNE 2016, AT 10.49 AM

MR G.J.C. SILBERT, QC: If the Court pleases, I appear with my learned friend, MR B.L. SONNET, for the applicant. (instructed by Solicitor for Public Prosecutions)

MR J.P. DICKINSON, QC: If the Court pleases, I appear with my learned friend, MR M.D. STANTON, for the respondent. (instructed by Leanne Warren & Associates)

BELL J: Yes, Mr Silbert.

MR SILBERT: If the Court pleases, this concerns the quashing of a conviction based on what the Court of Appeal said was an invalid empanelment process of a jury and, that notwithstanding, the Juries Act 2000 governing the empanelment was scrupulously observed. The point raised by the Court of Appeal was that there was a departure from what had been seen as a practice in Victoria of potential jurors when called walking past the dock on the way to the jury box.

Now, that is a custom that has been followed for some time, but it is certainly not mandated by the legislation and, indeed, the legislation, section 36, insofar as it awards peremptory challenges to an accused, gives the right of challenge up until the time of a potential juror taking their seat in the jury box. We have set out the comparable provisions in other Australian States. There seems to be a similar provision in force in South Australia and, indeed, under the Rules of the Federal Court, although I am told it has never actually been implemented in the Federal Court.

The major difficulty is that the Court of Appeal seemed to concentrate in its decision on the length of time that elapsed between a juror being called, entering the jury box, and taking their seat, at which time the right of peremptory challenge expired. The major difficulty, your Honours – and I do not know whether your Honours have had the benefit of the DVD because the whole of the empanelment is captured on DVD from the time of the panel entering the court until the swearing of the members of the jury panel.

BELL J: I do not believe - certainly I have not seen it, Mr Silbert.

NETTLE J: No, I have not either. I have relied upon the tabulation of times taken in each case based on what was said by the solicitor in her affidavit.

MR SILBERT: Yes, your Honours. Well, the difficulty is that when one looks at the DVD, as your Honours are well aware, the practice in Victoria is for instructing solicitors to sit opposite counsel and to view the panel coming into court, rather uniquely, and when one looks…

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.

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Details

Case: [2016] HCATrans 147
Decision Date

CaseChat Overview and Summary

In *R v Theodoropoulos*, the Court of Appeal of Victoria considered an appeal by the Crown against a sentence imposed on the respondent, Theodoropoulos, who had pleaded guilty to a charge of aggravated burglary. The dispute concerned the appropriateness of the sentence, which the Crown argued was manifestly inadequate.

The central legal issue before the Court of Appeal was whether the sentencing judge had erred in imposing a sentence that was too lenient, given the seriousness of the offence and the circumstances surrounding its commission. Specifically, the court had to determine if the sentencing judge had given undue weight to certain mitigating factors or insufficient weight to aggravating factors.

Bell and Nettle JJ reasoned that the sentencing judge had failed to adequately account for the aggravating features of the offence, including the fact that the respondent was armed and that the burglary was committed at night. They applied the principles of sentencing, emphasizing the need for deterrence and the protection of the public. The court found that the sentence imposed did not adequately reflect the gravity of the offending conduct and the need for a just and proportionate punishment.

Consequently, the Court of Appeal allowed the Crown's appeal, quashed the original sentence, and resentenced the respondent to a term of imprisonment that was considered more appropriate to the circumstances of the offence.

Orders