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Couloumbis v R

Couloumbis v R

Case [2012] NSWCCA 264 11 December 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Couloumbis v R [2012] NSWCCA 264
Hearing dates: 3 December 2012
Decision date: 11 December 2012
Before: McClellan CJ at CL at [1];
Harrison J at [2];
Adamson J at [41]
Decision:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentence imposed by Sorby DCJ on 11 November 2011.
4. In lieu of the sentence imposed by Sorby DCJ sentence the applicant to a term of imprisonment of 3 years and 9 months commencing on 4 May 2011 and expiring on 3 February 2015 with a balance of term of 1 year and 3 months commencing on 4 February 2015 and expiring on 3 May 2016.

Catchwords: CRIMINAL LAW - sentence - conspiracy to commit aggravated armed robbery - appeal against sentence - whether sentencing judge erred in holding that the offence was a mid range offence - whether sentencing judge double counted as an aggravating factor fact that offence committed for financial gain - whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Elyard v R [2006] NSWCCA 43
Gurney & Willetts v R [2011] NSWCCA 48
Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195
House v R [1936] HCA 40; (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Mulato v R [2006] NSWCCA 282
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Nicholas Couloumbis (Applicant)
Crown (Respondent)
Representation: Counsel:
K Earl (Applicant)
F Veltro (Crown)
Solicitors:
AHA Taylor Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/382477
Decision under appeal

Date of Decision:

2011-11-11 00:00:00

Before:

Sorby DCJ

File Number(s):

2010/382477

Judgment

McCLELLAN CJ at CL: I agree with Harrison J.

HARRISON J: The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Sorby DCJ in the District Court at Sydney on 11 November 2011. The applicant pleaded guilty to one count of the common law offence of conspiracy to commit aggravated armed robbery. The substantive offence is to be found in s 97(2) of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment.

Three additional offences were taken into account on a Form 1. These were another offence of conspiracy to commit aggravated armed robbery, and two offences of contravene an apprehended domestic violence order.

His Honour imposed a sentence of imprisonment of 7 years to date from 4 May 2011 and to expire on 3 May 2018 with a non-parole period of 5 years to expire on 4 May 2016. His Honour did not specifically refer to any circumstances warranting an adjustment of the s 44(2) statutory ratio but nevertheless imposed a non-parole period that was 71 percent of the head sentence. He included a discount of 25 percent in…

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 Couloumbis v R

Details

AGLC: Couloumbis v R [2012] NSWCCA 264
Case: [2012] NSWCCA 264
Decision Date: 11 December 2012

CaseChat Overview and Summary

In the case of Couloumbis v R, the appellant, Couloumbis, was convicted for his involvement in a conspiracy to commit aggravated armed robbery. He appealed against the sentence imposed by the primary judge, arguing that the sentence was manifestly excessive and that the judge had erred in characterising the offence as a mid-range offence and in considering the financial gain as an aggravating factor. The appeal was heard by the Court of Appeal, which had to determine whether the primary judge had made errors in assessing the seriousness of the offence and in applying the aggravating factors.

The central legal issues the Court of Appeal needed to resolve were whether the primary judge had correctly classified the offence as a mid-range offence and whether the judge had erred in treating the fact that the offence was committed for financial gain as an aggravating factor. Additionally, the court had to consider whether the sentence was manifestly excessive given the circumstances of the case. The appellant contended that the sentence was too severe, and that the primary judge had made errors in the application of the sentencing principles.

The Court of Appeal found that the primary judge had correctly assessed the seriousness of the offence as a mid-range offence, given the nature and circumstances of the conspiracy to commit aggravated armed robbery. The court also held that the primary judge did not double count in considering the financial gain as an aggravating factor. The Court of Appeal concluded that the sentence was not manifestly excessive, as it was proportionate to the gravity of the offence and took into account all relevant aggravating and mitigating factors. The appeal was therefore dismissed, and the original sentence was upheld.

No further orders were made by the Court of Appeal.

Orders