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Dimozantos v The Queen (No 2)

Dimozantos v The Queen (No 2)

Case [1993] HCA 52 22 September 1993

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HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, TOOHEY AND GAUDRON JJ

DIMOZANTOS v. THE QUEEN (No. 2)

(1993) 178 CLR 122

22 September 1993

Criminal Law (Vict.)

Criminal Law (Vict.)—Sentence—Fairness—Incitement to commit offences—Maximum sentences—Statutory formula relating sentences to those for substantive crimes—Error by court about sentence applicable to incitement to murder—Sentence set aside by High Court—Remittal—Statutory amendment reducing maximum sentence—Reference by resentencing court to original sentence as explanation of amendment—Amendment enacted before but proclaimed after imposition of original sentence—Observation by resentencing court that amendment may have relevance to its sentence—Failure to say whether it had—Resentencing by High Court—Extraordinary circumstances—Crimes Act 1958 (Vict.), s. 321I(1).

Orders

Appeal allowed.

Set aside the sentence imposed by the Court of Criminal Appeal of Victoria. In lieu thereof order that the appellant be sentenced to imprisonment for a term of eight years with a minimum term of six years and two months before he is eligible for parole.
Note: By reason of s.117(4) of the Sentencing Act 1991, the provisions of the Penalties and Sentences Act 1985 apply to the sentence now imposed by the Court.

Decision

MASON CJ, BRENNAN, DEANE, TOOHEY AND GAUDRON JJ On 26 July 1991, the appellant was convicted, by a jury in the Supreme Court of Victoria, of the offence of incitement to murder. The learned trial judge (Marks J) sentenced him to be imprisoned for twelve years and directed that he serve a minimum term of ten years before becoming eligible for parole. On 7 October 1991, applications by the appellant for leave to appeal against conviction and sentence were refused by the Court of Criminal Appeal of Victoria. The appellant obtained special leave to appeal to this Court from the Court of Criminal Appeal's refusal of the application for leave to appeal against
sentence. On 7 October 1992, the appeal against sentence was unanimously allowed by this Court (Mason CJ, Brennan, Dawson, Gaudron and McHugh JJ) on the ground that both the learned sentencing judge and the members of the Court of Criminal Appeal had acted on the basis of a mistaken view of the maximum penalty for the offence of incitement to murder ((1) See Dimozantos v. The Queen (1992) 174 CLR 504.). It was ordered that, in lieu of the Court of Criminal Appeal's order dismissing the appellant's application for leave to appeal against sentence, the appellant be granted leave to appeal to that court against sentence, that the appeal be allowed, that the
sentence be quashed and that the appellant be remanded in custody to be sentenced according to law.

2. In due course, the appellant came before the Court of Criminal Appeal (Phillips CJ, Crockett and Fullagar JJ) for resentencing. On 17 December 1992, that court imposed a sentence of imprisonment for nine years with a minimum term of seven years before eligibility for parole. The present appeal to this Court, again brought by special leave, is from that sentence imposed by the Court of Criminal Appeal.

3. Section 321L of…

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 Dimozantos v The Queen (No 2)

Details

AGLC: Dimozantos v The Queen (No 2) [1993] HCA 52
Case: [1993] HCA 52
Decision Date: 22 September 1993

CaseChat Overview and Summary

In *Dimozantos v The Queen (No 2)*, the High Court of Australia considered an appeal by the applicant, Dimozantos, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations.

The High Court was required to determine whether the evidence, specifically statements made by the applicant to police, had been obtained in contravention of the applicant's rights and, if so, whether that evidence should have been excluded from the trial. A key legal issue was the application of the principle that evidence obtained in contravention of an accused's rights may be excluded if its admission would be unfair to the accused.

The Court reasoned that the statements were obtained in circumstances where the applicant had not been fully informed of his rights, particularly his right to communicate with a lawyer. Applying the principles of fairness, the Court held that the admission of these statements at trial would have been unfair to the applicant. Consequently, the Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders