JUDGES:	MAXWELL ACJ, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2018
DATE OF JUDGMENT:	7 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 149 First Revision: 13 June 2018, [21]
JUDGMENT APPEALED FROM:	DPP v Sovolos (Unreported, County Court of Victoria, Judge Stuart, 3 March 2017 (Conviction), 18 May 2017 (Sentence))

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CRIMINAL LAW — Appeal — Conviction — Aggravated burglary — Circumstantial case — Whether verdict unsafe and unsatisfactory — Whether acquittals of co-accused inconsistent with applicant’s conviction — Rational explanation for acquittals of co-accused — Leave refused — Criminal Procedure Act 2009 s 276(1)(a) — R v Baden-Clay (2016) 258 CLR 308 applied.

CRIMINAL LAW — Appeal — Sentence — Aggravated burglary, reckless conduct endangering life, intentionally causing injury and breach of community correction order — Applicant sentenced to 11 years’ imprisonment with non-parole period of 7 years 6 months — Totality — Whether orders for cumulation disproportionate — Grave example of home invasion aggravated burglary — Firing of rifle in vicinity of occupants — Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M FitzGerald	Dr Martine Marich & Associates
For the Respondent	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL ACJ:

I agree with Priest JA.

PRIEST JA:

Overview

Paul and Mary Sawan lived in a house in a south eastern Melbourne suburb.

At about 4.30 am on 19 March 2015, three disguised and armed offenders forced their way into the Sawans’ home. In the course of this terrifying home invasion, one of the offenders — alleged to be the applicant — fired a number of bullets from a .22 calibre firearm. Another offender attacked Paul Sawan with a machete.

Police arrested and charged the applicant on 21 April 2015.

After a trial in the County Court, on 3 March 2017 the jury convicted the applicant of aggravated burglary[1] (charge 1), reckless conduct endangering life[2] (charge 2) and intentionally causing injury[3] (charge 3). At the same time, the jury acquitted the applicant’s co-accused, Milad Khaia and Richard De Luca. On 18 May 2017, the applicant was sentenced to be imprisoned in the manner I will later set out.
[1]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 22. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.

The applicant sought leave to appeal against his conviction, claiming in essence that the verdicts are unsafe and unsatisfactory. He also sought leave to appeal against sentence.

In my view, both applications must be refused. My reasons follow.

The application for leave to appeal against conviction

So far as conviction is concerned, the applicant sought to rely on a single ground, formulated as follows:

1. The verdicts of guilty are unreasonable and unsupported by the evidence.
PARTICULARS:
(a)On the…

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 Sovolos v The Queen

Details

AGLC: Sovolos v The Queen [2018] VSCA 149
Case: [2018] VSCA 149
Decision Date: 7 June 2018

CaseChat Overview and Summary

In the matter of Sovolos v The Queen, the appellant sought to appeal his conviction for aggravated burglary, as well as the sentence imposed. The appeal was brought under the Criminal Procedure Act 2009, specifically section 276(1)(a), which allows for an appeal against conviction or sentence on the grounds that the verdict is unsafe and unsatisfactory or that the sentence is excessive. The appellant contested both the sufficiency of the evidence and the proportionality of the sentence. The central issues revolved around the sufficiency of the circumstantial evidence to support the conviction and whether the sentence imposed was disproportionate in light of the totality principle.

The court examined the nature of the evidence presented in the case, which was primarily circumstantial. The appellant argued that the acquittal of his co-accused made his conviction unsafe and unsatisfactory. However, the court noted that there could be a rational explanation for the differing outcomes, such as the varying roles of the co-accused and the differing evidence against them. The court held that the evidence was sufficient to support the appellant’s conviction, and the acquittals of the co-accused did not render the verdict unsafe or unsatisfactory. The court also considered the principle of totality in assessing the proportionality of the sentence, ultimately concluding that the sentence was not disproportionate.

Given the evidence and the legal principles applied, the court refused leave to appeal both the conviction and the sentence. The reasoning was grounded in the understanding that the circumstantial evidence was adequate to support the conviction, and the sentence was proportionate to the severity of the crimes committed. The appellant’s argument regarding the acquittals of co-accused did not persuade the court that the conviction was unsafe or that the sentence was excessive. The court held firm in its decision, maintaining that the verdict was safe and the sentence appropriate.

The final orders of the court were to refuse leave to appeal both the conviction and the sentence, upholding the original findings and the sentence imposed by the lower court. The decision reaffirmed the principles of circumstantial evidence in criminal cases and the application of the totality principle in sentencing.

Orders