R v Theophanous - [2003] VSCA 99

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 149 of 2002

THE QUEEN
	v.
ANDREW CHARLES THEOPHANOUS

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JUDGES:	WINNEKE, P., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2003
DATE OF JUDGMENT:	31 July 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 99

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Criminal Law – Sentence – Re-sentencing on remaining three counts following quashing of conviction and sentence on one count – Deterioration of applicant’s condition in prison – Sentences imposed on remaining counts confirmed but ordered to be served concurrently – New release date directed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Barry	Solicitor to Commonwealth Director of Public Prosecutions
For the Applicant	Mr S. Shirrefs, Q.C. with Dr J. Bleechmore	Doogue & O’Brien

WINNEKE, P. (on behalf of the Court):

On 20 June 2003, we published our reasons with respect to the conviction application by the applicant. Having set aside the conviction on count 2, and – accordingly – having also set aside the sentence imposed on that count, we noted that the sentencing discretion had been re-opened in respect of the sentences which the trial judge had imposed upon counts 3, 5 and 6 and that that was so pursuant to s.569(1) of the Crimes Act 1958. Although the applicant had sought leave to appeal against the sentences imposed by the trial judge on those counts, and had addressed argument to this Court with regard thereto, the Court, nevertheless, gave leave to the applicant to address such further argument and place such further material before the Court as he should be advised to do in relation to the physical deterioration of the applicant since being incarcerated.

Such submissions have been advanced to the Court in writing. Furthermore, the applicant has put before us reports pertaining to the applicant’s physical status during the last year. We have read those reports. We think it unnecessary to refer to them in detail, although they suggest a significant deterioration in the applicant’s vision in the right eye, an apparent product of his unstable and underlying diabetes and vascular disease. We note that the applicant submits that he has not been getting certain treatment which his medical practitioners have advised. We have no doubt, and we will assume, that the correction authorities will take note of this Court’s expressed wish that the treatment referred to is restored.

As we noted in our published reasons, the judge imposed a sentence of three years' imprisonment on count 3 and one year’s imprisonment on each of counts 5 and 6. In compliance with the provisions of the Crimes Act 1914 (Cth), his Honour ordered partial cumulation of the sentences imposed by fixing differential commencement dates for each of the sentences, although the effect of doing so was to make the three-year sentence imposed on count 3 run concurrently with the five-year sentence imposed on count 2 – that latter count being the one in respect of which we have quashed the conviction and set aside the sentence.

We…

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 Theophanous

Details

AGLC: R v Theophanous [2003] VSCA 99
Case: [2003] VSCA 99
Decision Date: 31 July 2003

CaseChat Overview and Summary

The case of R v Theophanous involved the applicant, who faced a criminal trial in the Supreme Court of Australia. The applicant had been convicted on four counts and subsequently sentenced. The primary issue was the re-sentencing of the applicant on the remaining three counts following the quashing of his conviction and sentence on one of the counts. Additionally, the applicant's deteriorating health condition during his time in prison was a significant factor in the re-sentencing deliberations.

The court was tasked with determining whether the sentences imposed on the remaining counts should be altered in light of the applicant's health issues and the previous quashing of one count. The legal considerations included the principles of proportionality and fairness in sentencing, as well as the need to address the applicant’s current health status. The court also had to balance the principle of finality in legal proceedings with the exigencies presented by the applicant's health.

The court confirmed the sentences imposed on the remaining three counts but ordered them to be served concurrently. This decision was based on the applicant's deteriorating health condition, which warranted a compassionate adjustment to his incarceration terms. The court directed a new release date for the applicant, taking into account his current health and the need for medical attention. This ruling ensured that the applicant’s sentence reflected both the seriousness of his crimes and the necessity of addressing his health concerns.

Orders