Spanos v The Queen
[2012] VSCA 253
•10 October 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0195 | |
| APHRODITE SPANOS | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WARREN CJ and WEINBERG JA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 October 2012 | |
DATE OF JUDGMENT: | 10 October 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 253 | |
JUDGMENT APPEALED FROM | R v Spanos (Unreported, County Court of Victoria, Judge Gamble, 30 June 2011) | |
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CRIMINAL LAW – Appeal against sentence imposed after jury trial – Appellant aided and abetted co-offender – Guilty plea by co-offender – Whether parity principle breached – Whether sufficient weight given to appellant’s more limited physical role, age, better rehabilitation prospects and lack of relevant prior offending – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Barrie | Haines & Polites |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
I invite Williams AJA to deliver the first judgment.
WILLIAMS AJA:
The appellant was found guilty by a jury of intentionally causing serious injury. She was sentenced to seven years and six months' imprisonment with a non‑parole period of five years, on 30 June 2011. Her co‑offender and brother, Arthur Spanos, had made an early plea of guilty to the same offence. He had been sentenced on 1 May 2010, to eight years and six months' imprisonment with a non‑parole period of six years and three months.
A judge of the Court granted the appellant leave to appeal against her sentence on grounds expressed as follows in her 23 August 2011 notice of application for leave to appeal against sentence:
1.That the learned trial judge imposed a sentence that was disproportionate when compared with the sentence imposed on a co‑offender, Arthur Spanos, which, it is submitted, breached the principle of parity.
2. That the learned trial judge erred by not attaching sufficient weight to the appellant's limited physical role in the attack, the appellant's lack of prior offending and the appellant's age and prospects of rehabilitation.
Circumstances of the offence
The co‑offender had been a friend of the victim, Steven Papathanasiou, for some years. They had spent time together in gaol. The appellant had also known the victim for a considerable time and, at some point, had been involved in a relationship with him.
On 21 September 2007, the appellant and the victim were engaged in a verbal and physical altercation in Swan Street, Richmond. This altercation was the catalyst for the incident in which the victim was seriously injured some hours later. After the
altercation, the appellant contacted the police and claimed to have been assaulted. She declined to be medically examined or to make a statement and police drove her to her home in Stawell Street, Richmond. She then contacted the co‑offender and complained about the altercation.
The co‑offender came to the appellant's house and they discussed the situation before deciding to visit the victim that evening. The co‑offender was carrying a knife when they went to the victim's home in Manton Street, Richmond, shortly after 7.30 pm. There was, however, no evidence that the appellant was aware that he was.
The victim first saw the appellant and the co‑offender hiding behind parked vehicles. He then saw the co‑offender approach him aggressively, but lost sight of the appellant. The victim armed himself with a stick. He tried to defend himself as he and the co‑offender clashed and the co‑offender stabbed him a number of times. The victim felt a number of blows to his head and back which the sentencing judge inferred were delivered by the appellant. The victim fell to the ground and was unable to get up during the course of the attack.
The attack was witnessed to varying degrees by the victim's then partner and her mother, who lived nearby, and by another neighbour.
Just before the victim saw the appellant and the co‑offender run away from the scene, he heard the co‑offender say, in the appellant's presence, ‘That's my fucking sister. We went to a gaol together’.
The victim's partner saw the appellant and the co‑offender attacking the victim, who was on the ground. She saw the appellant hitting, kicking and swearing at the victim during the attack. Before seeing the two of them run away after the attack, she heard the co‑offender say to the victim ‘My sister, my sister, how could you do that to my sister?’.
The partner's mother also saw the appellant and the co‑offender attacking the victim. She heard the appellant shouting to the co‑offender, ‘Get the fucking cunt’. She saw the co‑offender using an object to stab the victim and the appellant leaning over him and kicking him in the lower half of the body intermittently. As the two fled the scene, she heard the appellant laughing and saying to the co‑offender, ‘We got the fucking cunt’.
Medical evidence established that the victim was stabbed seven times in places including the chest, spine and left thigh. The victim suffered a spinal cord laceration as well as a torn spleen, collapsed lungs and soft tissue injuries. He underwent surgery, spending nine days in the intensive care unit and seven weeks in a spinal unit before having more than two months rehabilitation treatment. He is now confined to a wheelchair.
Sentencing remarks
The sentencing judge found that:
1.the appellant had a close relationship with her brother, the co‑offender;
2.her upbringing was strict but unremarkable and she enjoyed school and excelled in her studies;
3.she and the co‑offender were introduced to drugs at a young age;
4.she used amphetamines occasionally but heroin was her drug of choice;
5.she had been addicted to heroin for 15 years and was prescribed methadone;
6.psychological evidence demonstrated that :
(a)she was a person of good judgment when not addicted to or affected by drugs;
(b)she had the ability to learn from her mistakes;
(c)she had a proven capacity to manage her heroin addiction without resorting to crime; and
(d)she had a demonstrated capacity to undertake tertiary studies and plan and build a career;
7.although her offending was very serious, the appellant was young at the time of the sentence, and had a very limited and inconsequential criminal history which included a bond for theft in 2003 and a fine for possession and use of cannabis and failing to answer bail in 2008;
8.the offending was clearly out of character as the appellant had no history of violence and had not committed any offence in the four year period since the incident;
9.there would be life-long impact upon the victim whose quality of life had been severely curtailed;
10.the appellant had come to regret her actions that night, at least to the extent of the victim's injuries (as had her brother); and
11.the appellant had the considerable potential to lead a productive and worthwhile life in the future, and had excellent rehabilitation prospects.
The appellant was sentenced on the basis that she had aided and abetted her brother in committing the offence, rather than acted in concert with him. The judge concluded that her culpability was of a high order, even though she was less culpable than the co‑offender who stated that he had played a leading role. She had enthusiastically encouraged him to use to knife on the victim, she had responded to the attack in a callous manner, and had refused to acknowledge any wrongdoing at the time. The judge also considered the delay in the case (which was not attributable to her) was a relevant factor in mitigation.
In light of the evidence to which the judge referred, I am not persuaded by the submission of counsel for the appellant that he erred in his findings of the fact as to her involvement.
In his comprehensive sentencing remarks, the judge compared the appellant's situation to that of the co‑offender. She was 30 years old at the time of the offence and 34 when sentenced. He was slightly younger and her only sibling. Her offending was out of character and she had no history of violence. He had an extensive criminal history. Her prospects of rehabilitation were excellent and clearly better than his. She had managed to address her serious drug addiction and had a better work history than he did. He had, nevertheless, been entitled to a discount for his early plea and had demonstrated some remorse. He had been sentenced to eight years and six months' imprisonment with a non‑parole period of six years and three months. The judge had indicated that, but for the guilty plea, he would have received a head sentence of eleven years and three months' imprisonment with a non‑parole period of eight and a half years.
The judge emphasised the importance of general deterrence and denunciation in the appellant's case and considered that specific deterrence and just punishment were required.
Submissions
The appellant argues that the judge erred by failing to apply the parity principle as it was stated in the High Court in Lowe v R[1] where Gibbs CJ said:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co‑offender which has received a sentence which is more severe than that imposed on a co‑offender whose circumstances are comparable would provide no reason and logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive.[2]
[1](1984) 154 CLR 606 (‘Lowe’). See also Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, 474–5 [31]–[32].
[2](1984) 154 CLR 606, 609.
The appellant submits that the judge:
ogave insufficient weight to her lesser physical role;
ofailed to take account of her comparative lack of relevant prior history; and
ofailed to take account of her comparatively better prospects of rehabilitation.[3]
[3]In breach of the principle in DPP v Josefski (2005) 158 A Crim R 185.
The respondent rejects the proposition that the appellant received a disproportionate sentence in breach of the parity principle. The respondent submits that there was no real basis of complaint as:
othe co‑offender entered an early plea of guilty at the committal mention stage and the judge accepted that he showed a level of remorse;
ohis criminal history did not include violent offending;
othe appellant was engaged, albeit in a limited role, as a physical attacker;
othe sentence reflects that the judge took her lesser role into account but concluded that she was culpable to a high degree;
oshe at least delivered some kicks to the victim's prone body after he had been felled by the knife wound effectively severing his spinal cord;
oher conduct was callous and she stood to be sentenced as remorseless;
oher age and excellent prospects of rehabilitation were clearly taken into account and reflected in the sentence;
oin any event, her age merited no special consideration;
othe co‑offender's sentence had been significantly reduced as a result of his guilty plea;
othe maximum sentence available was 20 years' imprisonment and the victim suffered appalling serious injuries;
othe judge had been required to take general deterrence, denunciation and specific deterrence into account and had given each appropriate weight;
othe appellant was fortunate to receive the sentence she did after standing trial;
othe differential between the head sentence and the non‑parole period adequately reflected the matters put in mitigation on her behalf; and
oa shorter non‑parole period would have undermined the head sentence.
Discussion and conclusions
As Gibbs CJ said in Lowe:
the reason why the Court interferes … is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.[4]
[4](1984) 154 CLR 606, 610.
In my view, the learned sentencing judge took into account the differences in age, criminal history and general character of the offenders in this case, as well as their respective roles in committing the offence. There could be no justifiable sense of grievance.
The appellant and the co‑offender may have played different physical roles in this attack, but she actively encouraged and participated in a shocking and cowardly assault which has had a devastating, life changing impact on the victim. Her behaviour throughout was callous and highly reprehensible. She did not have the benefit of the remorse shown by the co‑offender's early plea. He had a more extensive criminal history, but the judge considered his many offences of dishonesty related to drug use and noted that (like the appellant) he had no prior convictions for violent offending.[5] The judge took into account the need for specific deterrence in relation to the co‑offender's sentence.[6]
[5]R v Spanos (Unreported, County Court of Victoria, Judge Gamble, 30 June 2011) [34].
[6]Ibid.
Given the seriousness of the attack and the severity of the injuries intentionally inflicted on the victim, in the context of the maximum penalty of 20 years' imprisonment and the sentence imposed on the co‑offender, I am satisfied that there is no breach of the parity principle in this case.
To the extent that the second ground suggests error apart from a failure to apply the parity principle, I reject the argument that insufficient weight was given to the appellant's more limited physical role, her lacking of relevant prior offending or her age or prospects of rehabilitation. The weight given to those matters is reflected in the sentence which is moderate, in all the circumstances.
The appeal should be dismissed.
WARREN CJ:
I agree with her Honour, for the reasons that she gives, that the appeal should be dismissed.
WEINBERG JA:
I also agree.
WARREN CJ:
The Court will order the appeal dismissed.
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