Yoannidis v The Queen - [2018] VSCA 109

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0170

DANIEL YOANNIDIS

THE QUEEN

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JUDGES:	OSBORN, WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 April 2018
DATE OF JUDGMENT:	4 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 109
JUDGMENT APPEALED FROM:	R v Szabo; R v Yoannidis (Unreported, County Court of Victoria, Judge Gucciardo, 13 July 2017)

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CRIME – Sentence appeal – Parity – Co-offender received same total effective sentence and non-parole period – Similarities and dissimilarities – Conclusion open to sentencing judge – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Turnbull Lawyers
For the Respondent	Mr M D Phillips	Mr John Cain, Solicitor for Public Prosecutions

OSBORN JA:

I have had the benefit of reading the judgment of Whelan JA, in draft. I agree, for the reasons his Honour gives, that the appeal should be dismissed.

WHELAN JA:

On 22 June 2017, the appellant pleaded guilty in the County Court of Victoria to the charges set out in the table below, and on 13 July 2017 he was sentenced by a judge in the County Court as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary [Crimes Act 1958 s 77(1)]	25 years’ imprisonment	4 years 3 months	Base
2	Assault [Common Law]	5 years’ imprisonment [Crimes Act 1958 s 320]	1 year	1 month
3	Assault [Common Law]	5 years’ imprisonment [Crimes Act 1958 s 320]	1 year	1 month
4	Theft [Crimes Act 1958 s 74(1)]	10 years’ imprisonment	3 months	-
5	Theft [Crimes Act 1958 s 74(1)]	10 years’ imprisonment	3 months	-
6	Possess a drug of dependence (methylamphetamine) [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)]	Trafficking excluded 1 year imprisonment and/or 30 penalty units Trafficking not excluded 5 years’ imprisonment and/or 400 penalty units	2 months	1 month
Summary Charge	Unlicensed driving [Road Safety Act 1986 s 18]	3 months’ imprisonment or 25 penalty units	3 months	-
Total Effective Sentence:		4 years 6 months’ imprisonment
Non-Parole Period:		3 years’ imprisonment
Pre-sentence Detention Declared:		57 days
Section 6AAA Statement:		5 years 6 months’ imprisonment with a non-parole period of 4 years
Other relevant orders: Driver’s licence cancelled and disqualified from obtaining another licence for 42 months to commence from 13 July 2017. Compensation Order in the sum of $649.00.

The appellant committed these offences with a co-offender named Danny Szabo. Szabo pleaded guilty to charges which were the same as the first five charges on the appellant’s indictment. The appellant and Szabo were sentenced by the same sentencing judge after a joint plea hearing. Szabo received the same sentences on the five common charges as the appellant received.

Szabo was not charged with possession of methamphetamine (charge 6) or with unlicensed driving (summary charge), but he was charged with, pleaded guilty to, and was sentenced on, uplifted summary charges of dangerous driving, committing an indictable offence whilst on bail, contravention…

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 Yoannidis v The Queen

Details

AGLC: Yoannidis v The Queen [2018] VSCA 109
Case: [2018] VSCA 109
Decision Date: 4 May 2018

CaseChat Overview and Summary

The appellant, Yoannidis, appealed against his sentence for a crime committed, arguing that it was excessive compared to the sentence received by his co-offender. Both Yoannidis and his co-offender were sentenced to the same total effective sentence and non-parole period. The appeal was heard by the court which had to determine whether the sentence was manifestly excessive.

The legal issues revolved around the principle of parity in sentencing and whether the similarities and differences between the sentences of the co-offenders justified the appeal. The court was required to consider whether the sentencing judge had erred in concluding that the sentences were appropriate. The court considered the circumstances of the crime, the roles of the appellant and his co-offender, and the principles of sentencing.

The court found that the sentences were not manifestly excessive, and the sentencing judge had not erred in concluding that the sentences were appropriate. The court emphasised that the sentencing judge had considered the similarities and differences between the appellant and his co-offender, and had exercised their discretion in determining the appropriate sentence. The appeal was dismissed, and the original sentence was upheld.

No additional final orders were made.

Orders