Arsiotis v R

[2015] NSWCCA 275

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

ARSIOTIS v REGINA [2015] NSWCCA 275

Hearing dates:

19 October 2015

Date of orders:

19 October 2015

Decision date:

19 October 2015

Before:

Bathurst CJ at [1]; Hidden J at [12]; Davies J at [13]

Decision:

1 Grant the applicant leave to appeal.

 

2 Quash the sentence imposed by the sentencing judge and, in lieu thereof, impose a sentence of 18 months imprisonment, commencing on 6 January 2015 and expiring on 5 July 2016.

3 Order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that the applicant be released from imprisonment on 25 November 2015, upon entering into a recognisance in the sum of $250, without security, to be of good behaviour for the period from 26 November 2015 up to and including 5 July 2016.

Catchwords:

CRIMINAL LAW – appeal - sentencing – discount for guilty plea – resentencing where primary judge erred in calculation of discount for guilty plea

Legislation Cited:

Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)

Cases Cited:

Kentwell v The Queen [2014] HCA 37; 252 CLR 601

Category:

Principal judgment

Parties:

Michalis Arsiotis (Applicant)
Crown (Respondent)

Representation:

Counsel:
S McGee (Applicant)
K Marinos (Respondent)

  Solicitors:
Kiki Kyriacou Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2014/53188

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

1 May 2015

Before:

Acting Judge Delaney

File Number(s):

2014/00053188

Judgment

1. BATHURST CJ: This is an application for leave to appeal against the sentence imposed on the applicant by Acting Judge Delaney, for the offence of dealing with more than $100,000 reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth). The total amount involved was $990,050. It was not disputed that the potential financial benefit to the applicant was 7.5% of the total sum, namely, $74,253.75.

2. The applicant pleaded guilty to the offence. It was not disputed that he did so at the earliest possible opportunity.

3. The sentencing judge imposed a sentence on the applicant of 20 months imprisonment, commencing on 6 January 2015, but made a recognisance release order for his release on 5 January 2016. The factual findings made by his Honour, the objective seriousness of the offence and the subjective circumstances of the applicant, are not in dispute in this application. In the circumstances, it is not necessary to set them out.

4. In imposing a sentence, the sentencing judge remarked that the applicant was “entitled at common law to a 25% reduction in sentence” for his plea of guilty. His Honour was presumably referring to a discount calculated by reference to the willingness of the offender to facilitate the course of justice. Whatever be the case, it has not been contended in this appeal that a discount of 25% was inappropriate.

5. However, in reaching his conclusion on sentence, his Honour made the following remarks:

“I am satisfied that had this been a sentence after trial that the sentence would have been a sentence of 24 months imprisonment. He is entitled to 25% discount for a plea of guilty. In my opinion, the appropriate sentence to apply after taking into account all of the matters to which I have referred is a sentence of 20 months with a non-parole period of 12 months. In other words he is entitled to a release order after 12 months”.

6. The difficulty which has given rise to the application for leave to appeal is that a 25% discount on a sentence of 24 months would have resulted in a sentence of 18 months imprisonment. If the ratio between total sentence and the period served prior to the recognisance release order (60%) was maintained, the applicant would have been entitled to release on a recognisance release order after serving 10 months and 21 days.

7. The application for leave to appeal is based on this erroneous calculation by the sentencing judge. The Crown, very properly, has conceded that the judge was in error in this regard.

8. Having regard to the error which has been made, it is necessary to resentence the applicant. Although it is necessary for this Court to independently exercise its sentencing discretion (Kentwell v The Queen [2014] HCA 37; 252 CLR 601), in the present case, this task can be undertaken on the basis of the undisputed findings by the sentencing judge.

9. I have taken these findings into account, along with his Honour’s findings as to the objective circumstances of the offence and the subjective circumstances of the applicant. As I have indicated, they were undisputed and I agree with them. I have also taken into account the affidavit of the applicant in which he deposed of difficulties he was suffering as a result of a knee injury arising out of a fall he had on 16 June 2015. It was suggested by counsel for the applicant, in oral argument, that this should warrant a greater variation between the recognisance release period and the total term of imprisonment than the 60% envisaged by the sentencing judge. Having regard to the objective nature of the offence and the limited difference that a variation would make, I am unable to accept this submission.

10. In all of the circumstances, taking these matters into account and the extent to which the plea of guilty facilitated the course of justice, the appropriate sentence is a sentence of imprisonment for a term of 18 months, commencing on 6 January 2015 and expiring on 5 July 2016. I would also make a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) for the applicant’s release on recognisance after the expiration of a period of 10 months and 21 days after the commencement of his sentence, namely, on 25 November 2015.

11. In the result, I would make the following orders:

1. Grant the applicant leave to appeal.

2. Quash the sentence imposed by the sentencing judge and, in lieu thereof, impose a sentence of 18 months imprisonment, commencing on 6 January 2015 and expiring on 5 July 2016.

3. Order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that the applicant be released from imprisonment on 25 November 2015, upon entering into a recognisance in the sum of $250, without security, to be of good behaviour for the period from 26 November 2015 up to and including 5 July 2016.

12. HIDDEN J: I agree.

13. DAVIES J: I also agree.

**********

Decision last updated: 27 October 2015