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Tseros v The King

Tseros v The King

Case [2023] VSCA 179 7 August 2023

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0006

ALEXANDROS TSEROS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2023
DATE OF JUDGMENT:	7 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 179
JUDGMENT APPEALED FROM:	DPP v Hassan & Anor [2022] VCC 1842 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary and recklessly causing injury and other offences – Entry to premises of blind and vulnerable – Gratuitous injury to victim – Whether individual sentence of four years’ imprisonment for aggravated burglary manifestly excessive – Whether total effective sentence of 5 years’ imprisonment with 3 year non-parole period manifestly excessive – Leave to appeal against sentence refused.

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Counsel
Applicant		Ms MJ Brown
Respondent		Mr PL Bourke KC
Solicitors
Applicant	Nelson Brown Legal
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MACAULAY JA:

Introduction

On 4 April 2022, the applicant, now aged 31 years,[1] pleaded guilty before a judge of the County Court to aggravated burglary[2] (charge 2); recklessly causing injury[3] (charge 3); theft[4] (charge 4); possessing two or more firearms[5] (charge 5); cultivating a narcotic plant[6] (charge 6); and possessing a drug of dependence[7] (charge 7); and to related summary offences of committing an indictable offence whilst on bail[8] (charge 8); possessing cartridge ammunition[9] (charge 12); and possessing a prohibited weapon[10] (charge 15).
[1]His date of birth is 20 December 1991.
[2]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is five years’ imprisonment.
[4]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[5]Firearms Act 1996, s 7C. The maximum penalty is 10 years’ imprisonment.
[6]Drugs Poisons and Controlled Substances Act 1981, s 72B. The maximum penalty is one year’s imprisonment if the court is satisfied that cultivation is not for a purpose related to trafficking; or in any other case, 15 years’ imprisonment.
[7]Drugs Poisons and Controlled Substances Act 1981, s 73. The maximum penalty is five penalty units if the court is satisfied that no more than a ‘small quantity’ of cannabis was possessed; one year’s imprisonment if the court is satisfied that possession was not for a purpose related to trafficking; or in any other case, five years’ imprisonment.
[8]Bail Act 1977, s 30B. The maximum penalty is three months’ imprisonment.
[9]Firearms Act 1996, s 124. The maximum penalty is 40 penalty units.
[10]Control of Weapons Act 1990, s 5AA. The maximum penalty is two years’ imprisonment.
After a plea in mitigation, on 21 October 2022 the judge sentenced the applicant to a total effective sentence of five years’ imprisonment, with a non-parole period of three years, in accordance with the following table:

Charge

Offence

Sentence

Cumulation

2

Aggravated burglary

4 years

Base

3

Recklessly causing injury

18 months

9 months

4

Theft

6 months

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 Tseros v The King

Details

AGLC: Tseros v The King [2023] VSCA 179
Case: [2023] VSCA 179
Decision Date: 7 August 2023

CaseChat Overview and Summary

In the case of Tseros v The King, the appellant, a convicted criminal, sought leave to appeal against his sentence, arguing that it was manifestly excessive. The respondent, the Crown, opposed the appeal. The appellant was convicted of multiple offences, including aggravated burglary, recklessly causing injury, and other related crimes. The dispute centred on whether the individual sentence of four years’ imprisonment for aggravated burglary and the total effective sentence of five years, with a three-year non-parole period, were excessively severe given the circumstances of the case.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The appellant contended that the sentence was disproportionately severe, particularly in light of the mitigating factors, such as his early guilty plea and the fact that he was a first-time offender. The court was required to consider whether the trial judge had erred in the exercise of discretion in imposing the sentence, and whether the sentence was so excessive as to shock the conscience of the court.

The court held that the sentence was not manifestly excessive. The trial judge had considered all relevant factors, including the gravity of the offences and the need for deterrence and denunciation. The gratuitous nature of the injury inflicted on the victim, who was blind and vulnerable, was a significant aggravating factor. The court found that the trial judge had appropriately balanced the aggravating and mitigating factors and had not erred in imposing the sentence. Consequently, the appeal against sentence was dismissed, and leave to appeal was refused.

Orders