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):

1. 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.

1. 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.

1. 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.

1. We have re-visited the submissions made by and on behalf of the applicant in support of his application for leave to appeal against sentence. In so far as those submissions remain relevant to our re-sentencing task in respect of counts 3, 5 and 6 we have taken them into account. We have also had regard to the physical disabilities from which the applicant is continuing to suffer. We have had regard to his Honour’s reasons for imposing the sentences which he did in respect of counts 3, 5 and 6. In the event, we can see no reason to disturb the sentences of three years, one year and one year which his Honour imposed respectively upon those counts. However, we believe it is appropriate to order that those sentences be served concurrently. In coming to that conclusion we have had regard to the fact that his Honour has imposed sentences that were to a large extent concurrent, and we also take into account the material which has been provided to us as to the applicant’s deteriorating condition. We will achieve the concurrency of sentences by directing, pursuant to s.19(2) of the Crimes Act 1914 (Cth), that the sentences imposed on counts 3, 5 and 6 each commence on the 11^th day of June 2002, that being the day upon which the applicant commenced to serve the sentences imposed by the trial judge. In fixing those sentences we have taken into account the provisions of s.16G of the Commonwealth Crimes Act 1914 requiring us to take account of the fact that remissions have been abolished in this State. Pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth) we direct that, upon conditions that he be of good behaviour for a period of two years following release and upon making reparation in the sum of $2,000 to the Australian Crime Commission, the applicant be released upon a recognisance release order in the sum of $1,000 after the expiration of the service of 21 months of the sentences which we have imposed. We further declare pursuant to s.16E of the Crimes Act 1914 (Cth) that the applicant has already served 436 days of the sentences which we have imposed and we direct that the fact of that declaration and its contents be entered in the records of this Court.

1. Further, in accordance with sub-s.(2) of s.20 of the Crimes Act 1914 (Cth), we direct that counsel for the applicant explain to the applicant or cause to be explained to him in language likely to be readily understood the matters referred to in sub-paragraphs (a) to (c) inclusive of s.20(2).