Contos v The The Queen - [2022] NSWCCA 92

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Contos v R [2022] NSWCCA 92
Hearing dates: 7 March 2022
Date of orders: 9 May 2022
Decision date: 09 May 2022
Before: Brereton JA at [1]
N Adams J at [5]
Lonergan J at [96]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – alleged error in assessment of objective seriousness – parity – applicant sentenced on agreed facts different to co-offenders – other facts disclosed more serious criminality – applicant instigated and planned offending, co-offenders assisted – no error in assessment of objective seriousness – no disparity – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 86(2)(3), 97(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 33, 54D
Criminal Appeal Act1912 (NSW), s 5(1)(c)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huckstadt v R [2016] NSWCCA 22
Korovou v R [2021] NSWCCA 28
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Mulato v R [2006] NSWCCA 282
Tuivaga v R [2015] NSWCCA 145

Category: Principal judgment
Parties: Dean Contos (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr M Johnston SC (Applicant)
Mr G Newton (Respondent)
Solicitors:
William O’Brien & Ross Hudson Solicitors (Applicant)
Director for Public Prosecutions (Respondent)

File Number(s): 2019/00058808
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

11 March 2021

Before:

Noman SC DCJ

File Number(s):

2019/00058808

Judgment

BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by N Adams J, with which I agree.
As to relative objective gravity between the applicant and the co-offenders, it is to my mind significant that the applicant was the instigator and intended beneficiary of the criminal conduct which he planned, prepared and orchestrated, and that to the extent that there were aggravating elements in the conduct of the co-offenders, their participation was at his behest. I do not regard his “claim of right” as materially reducing the objective gravity of his offences: a “claim of right” might be relevant to a property offence (and indeed in this case appears to have resulted in no robbery offence being pressed against the applicant), but its relevance to an assault and kidnapping is at best marginal. In my opinion, the sentencing judge’s evaluation of the objective gravity of his offences as “only slightly lower than the assessment for the co-offenders” was not at all unfavourable to the applicant.
As to parity, its application was rendered acutely difficult for the sentencing judge, notwithstanding that her Honour sentenced all three offenders, by the alternative facts on the basis of which the judge was required to sentence the appellant, as distinct from those on which her Honour…

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 Contos v The The Queen

Details

AGLC: Contos v The The Queen [2022] NSWCCA 92
Case: [2022] NSWCCA 92
Decision Date: 09 May 2022

CaseChat Overview and Summary

The appeal in Contos v The Queen was brought by the applicant, Contos, against the sentence imposed by the lower court. The nature of the dispute was the alleged error in the assessment of the objective seriousness of the crime, leading to a disparity in sentencing between the applicant and his co-offenders. The case was heard in the court of appeal.

The legal issues before the court were whether there was an error in the assessment of the objective seriousness of the crime and whether there was a disparity in sentencing between the applicant and his co-offenders. The court needed to determine if the lower court had erred in its assessment and whether the sentences imposed were proportionate and consistent with the principles of parity.

The court found that there was no error in the assessment of the objective seriousness of the crime. It held that the applicant had instigated and planned the offending, and while his co-offenders assisted, the applicant's role was more significant. The court also found that there was no disparity in sentencing, as the sentences imposed reflected the differing roles and levels of involvement in the crime. Consequently, the appeal was dismissed. The court's reasoning was based on the principle that the sentences should reflect the individual circumstances and roles of each offender in the commission of the crime.

Orders