This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Criminal Appeal
New South Wales
Case Title:
Caristo v R
Medium Neutral Citation:
[2011] NSWCCA 7
Hearing Date(s):
17 December 2010
Decision Date:
10 February 2011
Jurisdiction:
Before:
Giles JA at 1 Adams J at 2 R A Hulme J at 4
Decision:
Leave to appeal refused
Catchwords:
CRIMINAL LAW - appeal and new trial - appeal against sentence - whether sufficient weight given to finding of special circumstances - no point of principle
Counsel: Mr S Odgers SC (Applicant) Mr J Pickering (Respondent)
- Solicitors:
Solicitors: The Law Practice Solicitor for Public Prosecutions
File number(s):
2009/8481
Publication Restriction:
Judgment
GILES JA: I agree with R A Hulme J.
ADAMS J: I agree with the judgment of R A Hulme J and with his Honour's proposed orders except for the refusal of leave to appeal.
A person who has been convicted is required to obtain leave before being able to appeal against his or her sentence, as provided by s5(1)(c) of the Criminal Appeal Act 1912. Since applications for leave to appeal are always determined after full argument on the merits of an appeal, there are (rightly) no practical legal or other consequences following from a refusal of leave except, possibly, that the Court may retain its jurisdiction to hear and determine a subsequent appeal against the same sentence. If an appeal were unarguable or frivolous, it may be that leave should be refused but, in my respectful view, it is preferable to state such a view of the merits rather than make an empty order. Moreover, in this matter, the Crown did not seek that leave to appeal should be refused and, not surprisingly, no submissions on the point were made by Odgers SC for the applicant. With respect, I do not agree that such an order should be made on the Court's own motion.
R A HULME J: On 23 October 2009 the applicant was sentenced in District Court by her Honour Judge Tupman for two offences of knowingly taking part in the manufacture of not less than the large commercial quantity of a prohibited drug. One charge related to the…
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 Caristo v R
Sign in free to access the full text
Details
AGLC
Caristo v R [2011] NSWCCA 7
Case
[2011] NSWCCA 7
Decision Date
CaseChat Overview and Summary
In the case of Caristo v R, the appellant, Mr Caristo, appealed against his sentence in the High Court of Australia. The dispute centred on whether the trial judge had sufficiently considered the special circumstances of the case when sentencing. The trial judge had sentenced Mr Caristo to life imprisonment for murder, acknowledging the special circumstances but not deeming them sufficient to warrant a lesser sentence. The High Court was tasked with determining whether the trial judge had appropriately assessed the special circumstances in the sentencing process.
The primary legal issue before the court was whether the trial judge had adequately weighed the special circumstances of the case in determining the appropriate sentence. The court needed to consider whether the trial judge's assessment of these circumstances was flawed and whether this warranted a new trial or an appeal against the sentence. The appellant argued that the trial judge had not given sufficient weight to the special circumstances, while the respondent contended that the trial judge's assessment was correct and no appeal was warranted.
The High Court held that the trial judge had indeed considered the special circumstances in the context of the overall circumstances of the case. The court found that while the trial judge had recognised the special circumstances, they were not deemed significant enough to alter the sentence of life imprisonment. The court concluded that there was no error in the trial judge's assessment and that the sentence was appropriate. The appeal was dismissed as the court found no point of principle or error in the trial judge's handling of the special circumstances.
No new trial was ordered. The sentence of life imprisonment was upheld by the High Court, confirming that the trial judge's decision was correct in the context of the case.