R v Vardouniotis

[2007] VSCA 62

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 251 of 2006

THE QUEEN

v

NICHOLAS VARDOUNIOTIS

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JUDGES:	MAXWELL P, EAMES and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2007
DATE OF ORDERS:	4 April 2007
DATE OF JUDGMENT:	3 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 62

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CRIMINAL LAW – Sentencing – Cultivation of commercial quantity of cannabis – Cultivation for own use – Mentally ill offender - Severe depression, schizophreniform disorder - Illness present at time of offending and at time of sentencing – Tsiaras principles – Whether taken into account – Whether imprisonment appropriate disposition.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Paul Vale

MAXWELL P:

1. The appellant pleaded guilty in the County Court to the following counts:

1.        Cultivation of a narcotic plant (cannabis) (maximum penalty if trafficking purpose excluded:  12 months).

2.        Cultivation of a commercial quantity of cannabis (maximum penalty:  25 years).

3.        Possession of cannabis (maximum penalty for a small quantity:  five penalty units).

4.        Theft of electricity (maximum penalty:  10 years).

1. He admitted previous convictions from 1996 for cultivation of cannabis and possession of cannabis.

1. The learned sentencing Judge recorded convictions on all counts and sentenced the appellant as follows:

·Count 1:  six months’ imprisonment;

·Count 2:  two years’ imprisonment;

·Count 3:  a fine of $200;

·Count 4:  six months’ imprisonment.

1. Her Honour directed that three months of the sentences imposed on counts 1 and 4 be served cumulatively upon each other and upon the sentence imposed on count 2, producing a total effective sentence of two years and six months.  The non-parole period was fixed at 12 months.  Her Honour said that this non-parole period was –

“…shorter than might be appropriate in other circumstances, to give you the opportunity to be supervised upon your release as you serve the balance of your term on parole within the community.”

1. Leave to appeal against sentence was granted by a judge of this Court on 24 November 2006.  The appeal itself did not come on for hearing until 22 March 2007, by which time the appellant had already served almost eight months of the 12 month non-parole period.  As President of this Court, I am concerned that so much of the non-parole period should already have expired before the appeal was heard.   Success on an appeal may be largely rendered nugatory if the whole or a substantial part of the non-parole period will have expired by the time the appeal is heard and determined.  

1. The grounds of appeal are threefold, as follows:

1.        The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

2.        The sentencing Judge erred by failing properly to take into account the evidence of the appellant’s age and ill-health.

3.        The sentencing Judge erred by failing to take into account the fact that the appellant had served “dead time” by virtue of his…