Dzundza v Calatzis

[2016] ACTSC 171

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dzundza v Calatzis

Citation:

[2016] ACTSC 171

Hearing Date:

7 July 2016

DecisionDate:

7 July 2016

Before:

Murrell CJ

Decision:

Appeal allowed in relation to nonparole period. Appeal otherwise dismissed. See [26].

Catchwords:

APPEAL – CRIMINAL LAW – Jurisdiction, Practice and Procedure – Judgment and punishment – sentence – nonparole period – where nonparole period manifestly excessive

Legislation Cited:

Magistrates Court Act 1900 (ACT) ss 207, 208

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33

Cases Cited:

Fusimalohi v The Queen [2012] ACTCA 49

House v The King (1936) 55 CLR 499
Monfries v The Queen [2014] ACTCA 46
R v Hutchinson [2014] ACTCA 29
R v Seears [2015] ACTSC 109

R v Lindley-Jones [2014] ACTSC 296

Parties:

Peter Dzundza (Appellant)

Paul Calatzis (Respondent)

Representation:

Counsel

Mr A Doig (Appellant)

Ms K McCann (Respondent)

Solicitors

Darryl Perkins Solicitors (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 7 of 2016

Decision under appeal: 

Court/Tribunal:             Magistrates Court of the ACT

Before:  Chief Magistrate Walker

Date of Decision:         13 November 2015

Case Title:  Calatzis v Dzundza

Court File Number:       CC 1305 of 2015

MURRELL CJ:

1. The appellant appealed against sentences imposed by the Chief Magistrate on 13 November 2015 on the ground that the sentences were manifestly excessive.

1. The relevant offences occurred during a “home invasion” on 23 January 2015. 

1. The Chief Magistrate imposed the following sentences: 

(a)Aggravated burglary, three years' imprisonment (maximum penalty 20 years' imprisonment, five year maximum in the Magistrates Court); 

(b)Possess offensive weapon, six months' imprisonment (three months to be served concurrently with the first sentence, maximum penalty one year's imprisonment); 

(c)Common assault, five months' imprisonment (to be served concurrently with the first sentence, maximum penalty two years' imprisonment). 

1. The total period to be served was three years and three months' imprisonment from 5 November 2015, i.e. 39 months' imprisonment.  Her Honour fixed a nonparole period of two years and three months or 27 months' imprisonment, 70% of the total sentence.

Appeals to the Supreme Court

1. The jurisdiction of the Supreme Court to hear criminal appeals from the Magistrates Court is under ss 207 and 208 of the Magistrates Court Act 1900 (ACT). 

1. On an appeal against sentence, the appellant must demonstrate an error in the exercise of the sentencing discretion.  It may be a specific error, such as the application of wrong principle, the consideration of extraneous or irrelevant matters or making a mistake about the facts: House v The King (1936) 55 CLR 499–505. Alternatively, error may be inferred if the sentence is manifestly excessive or manifestly inadequate, but only if the sentence is unreasonable or plainly unjust. Such a conclusion cannot be drawn merely because the appeal court would have imposed a more lenient sentence: Monfries v The Queen [2014] ACTCA 46 at [21]. The test has also been expressed as whether the sentence is outside the available sentencing range.

1. In determining any sentence, the factors that are to be taken into…