Zotos v The Queen - [2014] VSCA 324

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0200

SPIRO ZOTOS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 December 2014
DATE OF JUDGMENT:	10 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 324
JUDGMENT APPEALED FROM:	R v Zotos, [2014] VCC 1291 (Judge Cannon)

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CRIMINAL LAW — Sentence – Application for leave to appeal — Applicant pleaded guilty to attempting to pervert the course of justice — Forged character references provided to County Court on appeal from Magistrates’ Court — Whether sentence of 4 years’ imprisonment manifestly excessive – Application granted —Appeal allowed — Applicant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Crown	Mr R Gibson	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

I have read the judgment of Priest JA. I entirely agree with his Honour’s disposition of this appeal, and the sentence he proposes to substitute for that of the Court below.

PRIEST JA:

Introduction

On 16 August 2014, following a plea of guilty, the applicant was sentenced to be imprisoned for four (4) years on a charge of attempting to pervert the course of justice. In circumstances that I will later explain,[1] 10 months of another sentence of imprisonment was ordered to be served cumulatively upon this sentence, leading in essence to a total effective sentence of four (4) years and 10 months’ imprisonment, upon which the judge fixed a non-parole period of three (3) years and six (6) months’ imprisonment.
[1]See below [4]–[15].

The applicant seeks leave to appeal against sentence on the following ground:

1. In all the circumstances:
(a) the sentence imposed on the charge on indictment of attempting to pervert the course of justice;
(b) the order for cumulation; and
(c) the non-parole fixed;
are manifestly excessive.

For the reasons that follow, I would grant the application for leave to appeal, allow the appeal and sentence the applicant as later set out.

Background

The applicant’s attempt to pervert the course of justice arose out of an appeal by the applicant to the County Court, the appeal arising from sentences imposed upon him in the Magistrates’ Court.

On 16 May 2013, on three charges of trafficking in a drug of dependence (charges 2, 4 and 5); one charge of being a prohibited person in possession of an unregistered firearm (charge 9); and one charge of dealing with property reasonably suspected of being the proceeds of crime (charge 10); the Magistrates’ Court sentenced the applicant to be imprisoned for an aggregate period of two (2) years, upon which a non-parole period of 16 months was fixed. The applicant sought to appeal to the County Court against that sentence.[2]
[2]See Criminal Procedure Act 2009, s 254; County Court Act 1958, s 53A.

The appeal came on for hearing in the County Court on 11 December 2013. In contemplation that they would be used on the appeal, two…

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.

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Details

Case: [2014] VSCA 324
Decision Date: 10 December 2014

CaseChat Overview and Summary

Zotos was convicted for attempting to pervert the course of justice by providing false character references to the County Court in an appeal from a Magistrates' Court decision. He applied for leave to appeal against his sentence of four years' imprisonment, arguing that it was manifestly excessive. The High Court granted his application for leave to appeal and allowed the appeal, re-sentencing him.

The primary legal issue before the court was whether the sentence imposed on Zotos was manifestly excessive. The court considered whether the sentence was disproportionate to the offence and whether there were any mitigating factors that warranted a lesser sentence. The court also examined the principles of sentencing in criminal cases and the appropriate range of sentences for the offence of attempting to pervert the course of justice.

The court found that the sentence of four years' imprisonment was manifestly excessive. It noted that the offence was serious, but not of the highest category of seriousness. The court considered that a sentence of imprisonment was appropriate, but that a sentence of two years was more appropriate. The court found that the sentence imposed by the County Court was manifestly excessive because it did not accord with the principles of sentencing in criminal cases and was not commensurate with the seriousness of the offence. The court also noted that Zotos had shown remorse and had no previous convictions, which were mitigating factors that warranted a lesser sentence.

Orders