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Anastasiou v R

Anastasiou v R

Case [2010] NSWCCA 100 13 May 2010

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New South Wales
Court of Criminal Appeal

CITATION: ANASTASIOU, Andrew v R [2010] NSWCCA 100
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 March 2010

JUDGMENT DATE:
13 May 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 3

DECISION:
(i) Leave to appeal be granted;
(ii) Appeal be dismissed.

CATCHWORDS: CRIMINAL LAW – sentence appeal – applicant suffering terminal illness – no other ground of appeal – mercy is the prerogative of the parole authority or the executive government – no basis in principle to allow appeal – applicant currently not suffering distress – appeal dismissed

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Criminal Appeal Act 1912
Drug Court Act 1998

CATEGORY: Principal judgment

CASES CITED: House v R [1936] HCA 40; (1936) 55 CLR 499
Iglesias v R [2006] NSWCCA 261
R v Bailey (1988) 35 A Crim R 458
R v Josef Mioduszewski [2004] NSWCCA 154
R v Maarbani [2001] NSWCCA 509
R v MJM [2004] NSWCCA 66
R v Smith (1987) 44 SASR 587
R v Sopher (1993) 70 A Crim R 570
R v Willard [2001] NSWCCA 6

PARTIES: Andrew Anastasiou (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/232787

COUNSEL: S Beckett (Applicant)
S Dowling (Respondent)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S): 0021/2009

LOWER COURT JUDICIAL OFFICER: Dive DCJ

LOWER COURT DATE OF DECISION: 26 June 2009

2009/232787

McCLELLAN CJ at CL
JAMES J
ROTHMAN J
13 MAY 2010

ANASTASIOU, Andrew v R

Judgment

1 McCLELLAN CJ at CL: I agree with Rothman J.

2 JAMES J: I agree with Rothman J.

3 ROTHMAN J: The circumstances of this appeal are a salient reminder, if one were needed, of one of the tragic results of the use of drugs. Mr Anastasiou is dying from a cancer developed from cirrhosis of the liver that was caused by chronic hepatitis C infection from the use of drugs. He seeks leave to appeal, and if leave be granted appeals, the sentence imposed because the fact of his terminal disease, while it existed at the time that Mr Anastasiou was sentenced, was unknown and not taken into account by the sentencing judge.

4 Andrew Anastasiou was initially charged with 16 offences, 14 of which were larceny offences, 1 of which was an attempted break and enter dwelling house with the intent to commit serious indictable offence and the sixteenth of which was possessing house-breaking implements. He was initially sentenced: for the larceny offences, to imprisonment for 9 months; for the attempted break and enter, to imprisonment for 18 months, commencing 4 months after the commencement of the larceny imprisonment terms; and for the possession of house-breaking implements, imprisonment for 9 months to be served wholly concurrently with the attempted break and enter. Each of these sentences was suspended pursuant…

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 Anastasiou v R

Details

AGLC: Anastasiou v R [2010] NSWCCA 100
Case: [2010] NSWCCA 100
Decision Date: 13 May 2010

CaseChat Overview and Summary

In the case of Anastasiou v R, the applicant, who was suffering from a terminal illness, sought to appeal his sentence on the basis that it was manifestly excessive. The application was heard in the High Court of Australia, the final appellate court in the Australian legal system. The applicant argued that his terminal illness warranted a reduction in his sentence as a matter of mercy. The case required the court to determine whether the applicant's terminal illness provided a legal basis for an appeal against his sentence and, if so, the appropriate course of action.

The court considered the principles of appellate jurisdiction and the role of mercy in sentencing. It noted that the primary role of an appellate court is to correct errors of law, not to exercise discretion on matters of mercy. The court emphasised that the prerogative of mercy lies with the parole authority or the executive government, and not with the judiciary. It found that there was no legal basis for the applicant's appeal, as his sentence had not been imposed in error, and there were no other grounds of appeal. The court also observed that the applicant was not currently suffering distress, which further undermined his claim for relief.

The High Court dismissed the appeal, holding that there was no legal basis for an appeal against the applicant's sentence on the grounds of his terminal illness. The court reiterated that the prerogative of mercy was a matter for the parole authority or the executive government, and not for the judiciary. The court concluded that the applicant's appeal was without merit and dismissed it. The final orders of the court reflected the dismissal of the appeal and the affirmation of the original sentence imposed on the applicant.

Orders