Anargiros v The Queen - [2016] NSWCCA 134

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Anargiros v R [2016] NSWCCA 134
Hearing dates: 23 June 2016
Date of orders: 11 July 2016
Decision date: 11 July 2016
Before: Ward JA at [1]; Price J at [2]; McCallum J at [39]
Decision:
Leave to appeal against sentence refused

Catchwords: CRIMINAL LAW – appeal against sentence – poor health – whether decision to confine applicant’s poor health to considerations of special circumstances and not to the head sentence was erroneous – concession made by applicant’s senior counsel before sentencing judge – whether leave to appeal should be granted
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 25
Firearms Act 1996 (NSW), ss 50A, 51B, 51BA, 65
Cases Cited: Bell v R; Jelisavac v R [2009] NSWCCA 206
Betts v R [2015] NSWCCA 39
R v Fidow [2004] NSWCCA 172
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Sellen (1991) 57 A Crim R 313
Trindall v R [2013] NSWCCA 229
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: John Anargiros (Applicant)
Regina (Respondent)
Representation:
Counsel:
P. Lange (Applicant)
H. Baker (Respondent)
Solicitors:
S. Alexander (Applicant)
C. Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/172940
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 November 2014

Before:

Bennett SC DCJ

File Number(s):

2013/172940

Judgment

WARD JA: I agree with Price J.
PRICE J: The applicant pleaded guilty in the Local Court to the following charges:

Sequence 1: between 15 January 2013 and 18 March 2013, the applicant supplied firearms three times or more, being one sawn-off .22 calibre rifle, one .22 calibre Remington rifle, one .22 calibre Winchester rifle and eleven .22 calibre pen guns contrary to s 51B(1) of the Firearms Act 1996 (NSW). Maximum penalty – 20 years imprisonment with a standard non-parole period of 10 years.

Sequence 13: between 15 January 2013 and 18 March 2013, the applicant manufactured prohibited firearms, being pen guns, without being authorised by licence or permit contrary to s 50A(2) of the Firearms Act. Maximum penalty – 20 years imprisonment.

Sequence 14: on 8 April 2013, the applicant supplied a prohibited drug, namely ephedrine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Maximum penalty – 15 years imprisonment and a fine of 2,000 penalty units ($220,000).

Upon being committed for sentence to the District Court, the applicant adhered to his pleas. He asked Bennett SC DCJ to take into account eight matters on a Form 1 when imposing sentence for the charge of supplying firearms three times or more (Sequence 1). These offences were:

One charge of selling a prohibited firearm part on 18 March 2013 contrary to s 51BA(2) of the Firearms Act. Maximum penalty – 10 years imprisonment.

Five charges of selling ammunition without a licence or permit, contrary to…

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 Anargiros v The Queen

Details

AGLC: Anargiros v The Queen [2016] NSWCCA 134
Case: [2016] NSWCCA 134
Decision Date: 11 July 2016

CaseChat Overview and Summary

In the case of Anargiros v The Queen, the applicant sought to appeal against his sentence, arguing that the sentencing judge had erred by treating his poor health as a factor only in the consideration of special circumstances and not in determining the head sentence. The High Court of Australia was asked to determine whether the applicant should be granted leave to appeal.

The central legal issue before the Court was whether the sentencing judge had made an error in considering the applicant's poor health. The applicant contended that his poor health should have been taken into account when determining the head sentence, rather than merely being considered as a factor in special circumstances. The Court was also required to determine whether the concession made by the applicant's senior counsel before the sentencing judge that poor health was a relevant factor in special circumstances precluded the applicant from appealing against the sentence.

The Court found that the sentencing judge had not erred in considering the applicant's poor health only in the context of special circumstances and not the head sentence. The Court held that the concession made by the applicant's senior counsel before the sentencing judge was binding on the applicant and precluded him from appealing against the sentence. The Court concluded that the applicant was not entitled to leave to appeal. The Court noted that the sentencing judge had taken into account the applicant's poor health when determining the sentence and had exercised his discretion in a manner consistent with the relevant sentencing principles. The Court held that the applicant's argument that his poor health should have been considered in determining the head sentence was without merit.

The Court dismissed the applicant's appeal and refused to grant leave to appeal. The Court held that the sentencing judge had not erred in considering the applicant's poor health only in the context of special circumstances and that the concession made by the applicant's senior counsel before the sentencing judge precluded him from appealing against the sentence.

Orders