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Athos v R

Athos v R

Case [2013] NSWCCA 205 3 September 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Athos v R [2013] NSWCCA 205
Hearing dates: 31 July 2013
Decision date: 03 September 2013
Before: Beazley P at [1]
Johnson J at [2]
Price J at [3]
Decision:
Leave to appeal against sentence be granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - possession of prohibited firearms and weapons - whether less weight is to be afforded to good character in firearms offences - whether quantity of firearms increase the objective seriousness of individual offences - whether error in assessing the applicant's prospects of rehabilitation - whether marked disparity with sentence imposed on co-offender - whether court should intervene
Legislation Cited: Crimes Act 1900 s 115, a 527C(1)(a)
Crimes Act (Cth) 1914 s 16A(2)(m)
Crimes (Sentencing Procedure) Act 1999 s 21(3)(h), s 21A(2)(m), ss 21A(3)(e)-(f)
Criminal Appeal Act 1912 s 6(3)
Drug Misuse and Trafficking Act 1985 s 10(1)
Firearms Act 1996 s 7, s 51(1A), s 58(1), s 58(2), s 65(3)
Weapons Prohibition Act 1998 s 7
Cases Cited: Cooper v R [2005] NSWCCA 428
Gebara v R [2012] NSWCCA 107
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hristovksi v R [2010] NSWCCA 129
Mulato v R [2006] NSWCCA 282
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v AZ [2011] NSWCCA 43; (2011) 205 A Crim R 222
R v Baker [2000] NSWCCA 85
R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v Howard [2004] NSWCCA 348
R v llbay [2000] NSWCCA 251
R v Kennedy [2000] NSWCCA 527
R v Kollas and Mitchell [2002] NSWCCA 491
R v Leroy (1984) 2 NSWLR 441
R v Najam [2008] NSWCCA 32
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act [2004] NSWCCA 303; (2004) 61 NSWLR 305
Ryan v R [2001] HCA 21; (2001) 206 CLR 267; (2001) 118 A Crim R 538
Category: Principal judgment
Parties: Nicholas Athos (Applicant)
Regina (Respondent)
Representation: Counsel:
P Lange (Applicant)
S Herbert (Respondent)
Solicitors:
Hanna Legal (Applicant)
Department of Public Prosecutions (Respondent)

File Number(s): 2011/147758
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-10-25 00:00:00

Before:

Marien DCJ

File Number(s):

2011/147758

Judgment

BEAZLEY P: I agree with Price J.

JOHNSON J: I agree with Price J.

PRICE J: Nicholas Athos, the applicant, seeks leave to appeal against the sentence imposed upon him by Marien DCJ (the judge) in the District Court at Sydney on 25 October 2012.

The applicant had pleaded guilty in the Local Court to seven charges. Charge 1 was an offence of possession of a pistol, namely…

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 Athos v R

Details

AGLC: Athos v R [2013] NSWCCA 205
Case: [2013] NSWCCA 205
Decision Date: 03 September 2013

CaseChat Overview and Summary

The applicant appealed against his sentence for possession of prohibited firearms and weapons. The appeal was heard in the High Court of Australia. The central issues before the court were whether the sentencing judge should have afforded less weight to the applicant's good character in firearms offences, whether the quantity of firearms increased the objective seriousness of the individual offences, whether there was an error in assessing the applicant's prospects of rehabilitation, whether there was a marked disparity with the sentence imposed on a co-offender, and whether the court should intervene.

The court found that the sentencing judge did not err in affording weight to the applicant's good character. It was held that the sentencing judge was entitled to consider the applicant's previous good character and his remorse as mitigating factors. The court also held that the quantity of firearms did not necessarily increase the objective seriousness of the individual offences. The court found that the sentencing judge did not err in assessing the applicant's prospects of rehabilitation. The court held that the sentencing judge was entitled to consider the applicant's prospects of rehabilitation as a mitigating factor. The court held that there was no marked disparity with the sentence imposed on the co-offender. The court held that the sentencing judge was entitled to consider the differences between the applicant and the co-offender in assessing their respective sentences. Finally, the court held that it should not intervene with the sentence imposed by the sentencing judge.

The appeal was dismissed. The sentence imposed by the sentencing judge was upheld.

Orders