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Thymiopoulos v The Queen

Thymiopoulos v The Queen

Case [2012] VSCA 220 12 September 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0173
THOMAS THYMIOPOULOS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 September 2012
DATE OF JUDGMENT:	12 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 220
JUDGMENT APPEALED FROM:	DPP v Thymiopoulos (Unreported, County Court of Victoria, Judge Chettle, 11 July 2011)

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CRIMINAL LAW – Sentencing – Conspiracy to pervert the course of justice – Applicant sentenced to a TES of five years and three months’ imprisonment with a non-parole period of three years and three months – Whether sentence and non-parole period manifestly excessive – Whether judge gave sufficient weight to applicant’s medical condition – Fresh evidence – Whether permissible on appeal to take into account Parole Board’s determination as to earliest release date – R v Buscema [2011] VSC 206, R v Tognolini [2011] VSCA 113, R v Nguyen [2006] VSCA 184, referred to – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R Sutton	Revill & Papa
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA
OSBORN JA:

This is a renewed application for leave to appeal against a total effective sentence of five years and three months' imprisonment with a non‑parole period of three years and three months imposed on the applicant on pleading guilty to one charge of conspiracy to pervert the course of justice and a summary charge of breach of an intervention order.

Originally the applicant sought leave to appeal against conviction and sentence. On 1 February 2012, Harper JA refused both applications. The applicant then elected to renew each application, but he has since abandoned the application for leave to appeal against conviction.

The facts

The facts of the matter are in relatively narrow compass. In 2009, the applicant and one Debra Hobbs were close friends. On 19 September 2009, police arrested the applicant for breach of an extended supervision order, the result of his alleged involvement with a teenage girl.

On 20 September 2009, Ms Hobbs spoke to police and, when told of the applicant's alleged involvement with the teenage girl, she alleged that the applicant was a stranger to her who had raped her on 18 September 2009.

On 24 September 2009, the applicant was sentenced to be imprisoned for seven days for breach of extended supervision order. At the conclusion of the sentence, he was detained pursuant to the extended supervision order, at first at Esotec in H M Ararat Prison and then in Corella Place, until 8 November 2009.

While in custody during September 2009, he had a series of telephone calls with Debra Hobbs, which were recorded by the prison authorities, of which the context and content were inconsistent with Ms Hobbs' allegations of rape.

On 15 October 2009, Ms Hobbs obtained an intervention order from the Magistrates' Court at Geelong which prohibited the applicant from contacting her by telephone.

During the early…

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.

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Details

AGLC: Thymiopoulos v The Queen [2012] VSCA 220
Case: [2012] VSCA 220
Decision Date: 12 September 2012

CaseChat Overview and Summary

The applicant, Thymiopoulos, appealed against his sentence for conspiracy to pervert the course of justice, contending that the sentence of a total effective sentence of five years and three months' imprisonment with a non-parole period of three years and three months was manifestly excessive. The case was heard by the Victorian Court of Appeal, which had to determine whether the sentence and non-parole period were excessive and if the trial judge appropriately considered the applicant's medical condition. Additionally, Thymiopoulos raised fresh evidence and argued that the Court should take into account the Parole Board's determination regarding his earliest release date.

The Court of Appeal assessed the trial judge's consideration of the applicant's medical condition and the severity of the offence. It considered the principles outlined in R v Buscema, R v Tognolini, and R v Nguyen, which guide appellate courts in reviewing sentences. The Court found that the trial judge had adequately weighed the medical evidence and the circumstances of the crime. It also concluded that the sentence imposed was not manifestly excessive, taking into account the seriousness of the offence and the need for general deterrence. Furthermore, the Court held that fresh evidence, such as the Parole Board's determination, should not be considered on appeal unless it significantly impacts the sentence's fairness.

Consequently, the Court of Appeal dismissed the applicant's appeal, maintaining the sentence and non-parole period as imposed by the trial judge. The Court emphasised the importance of respecting the trial judge's sentencing discretion and the principle that appeals against sentence should be the exception rather than the rule. The applicant's application for leave to appeal to the High Court was subsequently refused.

Orders