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Vergados v The Queen

Vergados v The Queen

Case [2011] VSCA 438 20 December 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0772

ILIAS VERGADOS
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, NETTLE and ASHLEY JJA
WHERE HELD:	BENDIGO
DATE OF HEARING:	20 September 2011
DATE OF JUDGMENT:	20 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 438
JUDGMENT APPEALED FROM	R v Filippi, Kosterman and Vergados (Unreported, County Court of Victoria, Judge Lacava, 10 August 2009)

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CRIMINAL LAW – Appeal against sentence – Appellant convicted of numerous property and violence offences committed during methamphetamine binge – Young offender suffering mental impairment and depression – Appellant sentenced to eight years’ imprisonment with a non-parole period of five years and four months’ imprisonment – Sentence manifestly excessive – Failure to properly moderate sentence by reason of appellant’s mental impairment and depression – Appeal allowed – Appellant re-sentenced to five years and six months’ imprisonment with a non-parole period of three years and six months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Garde-Wilson Lawyers
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

On 1 May 2009, the appellant pleaded guilty to a number of violence, arson, motor vehicle and property related offences for which he was sentenced on 10 August 2009 to a total effective sentence of eight years’ imprisonment with a non-parole period of five years and four months’ imprisonment, disqualified from driving for five years, and ordered to pay compensation of $42,500. The appellant was sentenced to the following individual terms of imprisonment for these offences:

Presentment Y00216712
Count	Maximum Penalty	Sentence	Cumulation
1. Burglary	10 years	2 years	None
2. Theft	10 years	2 years	None
3. Theft	10 years	2 years	1 year
4. Reckless conduct endangering person	5 years	2 years	None
5. Recklessly causing serious injury	15 years	3 years	2 years
6. Recklessly causing injury	5 years	2 years	6 months
7. Recklessly causing injury	5 years	3 years	3 months
8. Failing to render assistance after accident	10 years	2 years	3 months
9. Arson	15 years	3 years	1 year
Presentment C0806490
1. Intentionally causing serious injury	20 years	3 years	Base
Summary Charges
36. Unlicensed driving	25 penalty units or 3 months’ imprisonment	$200 fine	None
39. Lighting a fire on a total fire ban day	100 penalty units or two years’ imprisonment or both	2 years	None

Total effective sentence:	8 years
Non-parole period:	5 years and 4 months[1]
6AAA declaration:	TES of 10 years with NPP of 8 years

[1]Although in his reasons for sentence, the sentencing judge indicated his intention to impose a non-parole period of six years’ imprisonment, the endorsed return of prisoner indicates a non-parole period of five years and four months’ imprisonment was actually imposed.

The appellant seeks leave to appeal his sentence on five grounds. Ground 1 asserts manifest excess in both the total effective sentence and each individual sentence. The appellant relies on his early guilty plea; the absence of any prior…

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 Vergados v The Queen

Details

AGLC: Vergados v The Queen [2011] VSCA 438
Case: [2011] VSCA 438
Decision Date: 20 December 2011

CaseChat Overview and Summary

Vergados appealed against his conviction and sentence in the High Court of Australia. The appellant was found guilty of numerous serious property and violence offences, which occurred during a period of methamphetamine use. The offending conduct was characterised by significant violence and property damage. The court was required to determine whether the sentence imposed was manifestly excessive and whether the trial judge failed to properly moderate the sentence by taking into account the appellant's mental impairment and depression. The appellant contended that the sentence was manifestly excessive and that the trial judge failed to adequately consider his mental health issues when imposing sentence. The High Court found that the sentence was indeed manifestly excessive. The court held that the trial judge failed to properly consider the appellant's mental impairment and depression, which were significant mitigating factors. The High Court allowed the appeal and re-sentenced the appellant to five years and six months' imprisonment with a non-parole period of three years and six months. This decision underscores the importance of considering an offender's mental health when determining an appropriate sentence.

Orders