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…
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- AGLC
- Thymiopoulos v The Queen [2012] VSCA 220
- Case
- [2012] VSCA 220
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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