Tscherepko v The Queen - [2010] VSCA 299

SUPREME COURT OF VICTORIA

COURT OF APPEAL

SIMON TSCHEREPKO	S APCR 2008 0816
SIMON TSCHEREPKO	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and HARPER JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 September 2010
DATE OF JUDGMENT	17 November 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 299
JUDGMENT APPEALED FROM	R v Tscherepko (Unreported, County Court of Victoria, Judge Smallwood, 9 September 2008)

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CRIMINAL LAW – Sentencing – Appellant pleaded guilty to one count of aggravated burglary, unlawful imprisonment, assault, threat to kill and two counts of theft – Vulnerable victim at night on residential property – Whether sentence of eight years’ imprisonment with a non-parole period of six years manifestly excessive – Evidence – Fresh evidence – Whether evidence of hardship faced in prison should have been put before sentencing judge – Appeal allowed – Appellant re-sentenced to a total effective sentence of seven years and six months’ imprisonment with a non-parole period of five years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Doyle	Revill & Papa Lawyers
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of T Forrest AJA. I agree that the appeal should be allowed and that the appellant be re-sentenced as his Honour proposes.

HARPER JA:

I agree.

T FORREST AJA:

Late in the evening of 9 February 2008 the appellant, Simon Tscherepko, broke into a house in Market Street Kensington. Asleep upstairs was Stella Pericleous. Her male partner was at work. The appellant made sufficient noise in searching for valuables to wake Ms Pericleous. She came down the stairs wearing only a t-shirt. She is a diminutive woman. She screamed. The appellant moved quickly to her, grabbed her and stifled her screams. He led her back upstairs, questioned her as to the presence of money, led her back downstairs, took her glasses off and recovered a small sum of money and her credit cards. His Honour, the learned sentencing judge, remarked that ‘at that stage a serious example of aggravated burglary had taken place.’

At that point the appellant directed Ms Pericleous back upstairs, told her to lie on the bed face down and put her hands behind her back. He tied her hands together with electrical cord. He tied her feet together in the same way. He then joined the two cords together. Having hogtied (to use his Honour’s words) this semi-naked diminutive young woman in her own home, the appellant set about searching her home for her valuables at his leisure. He sought instructions as to their whereabouts. He required the PIN numbers of her bankcards, and threatened to come back and kill her if the numbers were wrong. He stayed for about an hour and stole about $3000 worth of various types of property, including a mobile phone.

At 3.30am using one of the stolen cards and the PIN procured from 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 Tscherepko v The Queen

Details

AGLC: Tscherepko v The Queen [2010] VSCA 299
Case: [2010] VSCA 299
Decision Date: 17 November 2010

CaseChat Overview and Summary

In Tscherepko v The Queen, the appellant appealed against a sentence imposed by the Supreme Court of Victoria, arguing that the sentence was manifestly excessive. The appellant had pleaded guilty to one count of aggravated burglary, unlawful imprisonment, assault, threat to kill, and two counts of theft. The victim, a vulnerable individual, was attacked at night on a residential property. The Court of Appeal was tasked with determining whether the sentence of eight years' imprisonment with a non-parole period of six years was manifestly excessive, and whether the sentencing judge should have been made aware of the evidence of hardship faced by the appellant in prison.

The Court of Appeal considered whether the evidence of the appellant's hardship in prison should have been brought before the sentencing judge. The Court noted that the evidence related to the appellant's conduct in prison and was relevant to the sentencing decision. The Court held that the evidence should have been put before the sentencing judge as it was relevant to the sentence imposed. The Court also considered the totality of the appellant's offending, the level of culpability, and the need for general deterrence. The Court concluded that the sentence imposed was manifestly excessive, and the appeal was allowed.

The Court of Appeal re-sentenced the appellant to a total effective sentence of seven years and six months' imprisonment with a non-parole period of five years and six months. The Court noted that the re-sentence took into account the totality of the appellant's offending, the level of culpability, and the need for general deterrence. The Court also noted that the re-sentence reflected the evidence of the appellant's hardship in prison. The Court held that the re-sentence was just and appropriate in all the circumstances.

Orders

Orders of the court

Appellant resentenced

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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