DPP v Frengos [2005] VSCA 117 (5 May 2005)

Last Updated: 16 May 2005

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 59 of 2005

THE QUEEN
	v.
DIMITRIOS (JIM) FRENGOS

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JUDGES:	WINNEKE, P., BYRNE and OSBORN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2005
DATE OF JUDGMENT:	5 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 117

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Criminal law - Sentencing - Argument of disparity of sentence between two co-offenders - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M. Kowalski	Victoria Legal Aid

WINNEKE, P.:

1 The applicant, Jim Frengos, stood for sentence on 21 February this year in the County Court, along with three other persons - Peter Maj, Michelle Mercieca and Graham Moore - on counts of assault alleged to have been perpetrated upon two Chubb security officers, George Wariri and Michael Deaker, at the Crown Casino on 4 August 2003. The applicant pleaded guilty, as did his co-accused, and, after hearing pleas in mitigation of sentence, his Honour sentenced the applicant Frengos to a period of eight months' imprisonment, but directed that four months of that imprisonment be suspended for a period of two years. Frengos has applied for leave to appeal against that sentence to this Court, principally on the basis that the sentence imposed is manifestly and erroneously disparate from the sentence imposed upon one of the co-accused, Graham Moore. In addition, he argues that the sentence is manifestly excessive.
2 The circumstances in which the offending occurred took place outside the Heat Night Club, which is apparently a night club in the complex of the Crown Casino. It would appear that, as a result of a disturbance, the Chubb security officers were brought to the premises for the purposes of quelling what was said to be a conflict between various people. As it happened, when the Chubb security officers arrived, a group of people, including the applicant, were descending on the escalator and, whilst that was occurring, there was a conflict between the patrons and the Chubb security staff. Wariri was descending the escalator when Michelle Mercieca ran towards him and grabbed his shirt in a hostile fashion. It was said that damage was done to his clothing, and that indeed was the basis of the count of assault against Michelle Mercieca. Shortly afterwards, Wariri was approached by Frengos and Maj, and on the material that was outlined to the court, his Honour found that Wariri was punched repeatedly by Frengos and Maj, that being the basis of the count of common assault against those two persons.
3 A separate count of assault was preferred against Graham Moore, and that occurred shortly after the incidents to which I have just referred. Despite the fact that it appears that a lot of personal violence had been inflicted on various individuals and many punches were thrown by them, the count of assault against Moore did not involve any allegation of actual battery. Rather, the allegation was an assault constituted by a threat of violence, namely, the pretence that he possessed a firearm and was about to inflict violence upon the security guard with it.
4 His Honour, having heard the pleas in mitigation as I have mentioned, said in respect of Moore that, like the present applicant, his record was an appalling one and had included a prior conviction on a murder count, in respect of which he had been released on parole shortly before the offence. Nevertheless, he took into account what had been said on behalf of Moore in respect of his progress whilst he was in custody, and that that had been reflected in some academic course that Moore had undertaken and passed whilst he was in gaol.
5 As I have said, a sentence of eight months with four months suspended was imposed upon the applicant Frengos, but in respect of Moore his Honour imposed a sentence of three months and that period was wholly suspended for two years. Mr Kowalski, who has appeared on behalf of the applicant Frengos in this Court, has put at the forefront of his argument what he calls manifest disparity between the sentence imposed upon his client Frengos and the sentence imposed upon Moore. Both offenders, Mr Kowalski said, were entitled to be treated alike because both were in breach of "trust orders"; in the case of Moore, his parole; and in the case of Frengos, a bail order. Furthermore, each was a person with what the judge described as an appalling past history and record of offences. Likewise, according to Mr Kowalski, his Honour should have treated them exactly the same for the purposes of sentencing here because they had engaged in, and were charged with, the same set of events in which they had both committed assaults. Mr Kowalski properly pointed out that the Court is only entitled to intervene on the ground of disparity if the disparity is manifest in the circumstances and raises not only in the prisoner a justifiable sense of grievance, but also would raise a justifiable sense of grievance in the objective bystander.
6 Mr Holdenson, who appeared for the respondent, submitted that the disparity in the sentencing of the two prisoners, to which I have referred, is justified because there was a significant difference in the types of assault which were alleged against the respective offenders. On the one hand, the assault alleged against the applicant was a physical assault on the security guard Wariri, whereas the assault alleged against the prisoner Moore was not personal violence, or battery, but was an assault by way of threat.
7 In my view, there is justification in that argument and I think that Mr Holdenson is correct to point out that the disparity in the circumstances could neither be manifest nor would it raise a justifiable sense of grievance in the objective observer. The community would generally regard an assault by way of threat as being something significantly different from an assault by way of battery. In those circumstances I would not be disposed to allow the ground of disparity which has been argued.
8 So far as the ground of manifest excess is concerned, I am quite satisfied that there is no basis in that ground. The sentence imposed by his Honour seems to me to have been well within the range available to him in the circumstances of this case.
9 Accordingly, I would dismiss the application.

BYRNE, A.J.A.:

10 I agree and would just add one thing. As the President has pointed out, each of the applicant, Mr Frengos, and the co-accused, Mr Moore, was in a sense on a trusted basis at the time of the incident. The co-accused Moore was on parole and at risk of being required to complete the further four years of his sentence. The applicant, who was not quite on parole but was on bail after a 15-months sentence for driving offences imposed very shortly previously, was not at the same risk in the sense that this conviction would not have any direct effect on the bail, except in so far as it may be revoked; it would not have the effect on the prospect that he may or may not succeed on his appeal against those offences. There is to that extent a different situation and Mr Moore was at greater risk as a result of the events of this evening. I too share the view of the President that there is a qualitative difference in the assaults alleged against the two. I would therefore refuse the application.

OSBORN, A.J.A.:

11 I agree that the application should be refused for the reasons advanced by the President.

WINNEKE, P.:

12 The formal order of the Court is that the application is refused.

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