Medium Neutral Citation: Efthimiadis v R (No 2) [2016] NSWCCA 9
Hearing dates: 24 September 2015
Date of orders: 09 February 2016
Decision date: 09 February 2016
Before: Price J at [1]
Harrison J at [99]
Button J [100]
Decision:
(1)   An extension of time in which to seek leave to appeal granted.
(2)   Leave to appeal granted.
(3)   Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – solicit to murder – whether an extension of time to seek leave to appeal should be granted – whether the decision of this Court in the first appeal amounts to a jurisdictional bar – ‘Muldrock error’ conceded by the Crown – re-sentence – whether assessment of mid-range seriousness should be considered without separate ground of appeal – whether applicant’s culpability is reduced by dealing with an undercover police officer – whether lack of harm to victim mitigates the offence – aggravating factors on sentence – planning of the offence – conditional liberty – considerations of specific and general deterrence – domestic relationship – whether support of victim reduced penalty – whether applicant has good rehabilitation prospects – participation in custodial rehabilitation programs – lack of remorse – consideration of sentencing statistics and other cases – whether special circumstances exist – whether lesser sentence should be passed
Legislation Cited: Crimes Act 1900 (NSW) s 26
Criminal Appeal Act 1912 (NSW) s 6(3)
Cases Cited: Abdul v R [2013] NSWCCA 247
Ali v R [2010] NSWCCA 35
Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58
Efthimiadis v R [2013] NSWCCA 276
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
In the Matter of the Attorney General's Application (No 1) under s26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327
Kentwell v R [2014] HCA 37; 252 CLR 601
Louizos v R [2014] NSWCCA 242
Louizos v R, R v Louizos [2009] NSWCCA 71
Lowe v R [2015] NSWCCA 46
MLP v R [2014] NSWCCA 183
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Burton [2008] NSWCCA 128
R v Fernando [2002] NSWCCA 28
R v M.A.K., R v M.S.K. [2006] NSWCCA 381
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Pham [2015] HCA 39
Skocic v R [2014] NSWCCA 225
Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Category: Principal judgment
Parties: Theodore Efthimiadis (Applicant)
Regina (Crown)
Representation:
Counsel:
J. Manuell SC (Applicant)
T. Smith (Crown)
Solicitors:
S.E. O’Connor – Legal Aid NSW (Applicant)
C. Hyland – Solicitor for Public Prosecutions (Crown)

File Number(s): 2007/9839
Decision under appeal

Court or tribunal:

Court of Criminal Appeal

Jurisdiction:

Common Law

Date of Decision:

14 November 2013

Before:

Hoeben CJ at CLJohnson JLatham J

File Number(s):

2007/9839

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 Efthiamadis v The Queen (No 2)

Details

AGLC: Efthiamadis v The Queen (No 2) [2016] NSWCCA 9
Case: [2016] NSWCCA 9
Decision Date: 09 February 2016

CaseChat Overview and Summary

Efthiamadis was convicted for soliciting to murder and was sentenced to imprisonment. The applicant sought to appeal the sentence, but the appeal was dismissed due to procedural errors. In this subsequent case, the applicant sought an extension of time to appeal the sentence. The Crown conceded a jurisdictional error, but argued that the initial dismissal should bar any further appeal. The court considered whether the earlier dismissal constituted a jurisdictional bar and whether an extension of time should be granted.

The court addressed whether the applicant’s culpability was mitigated by dealing with an undercover police officer and whether the absence of actual harm to the victim should reduce the penalty. It also examined the planning of the offence as an aggravating factor and the importance of specific and general deterrence. The court considered whether the applicant’s participation in rehabilitation programs and the lack of remorse affected the sentencing. Additionally, the court weighed the support provided by the victim to the applicant and its potential impact on the penalty.

The court determined that the earlier dismissal did not constitute a jurisdictional bar and granted an extension of time to appeal the sentence. It found that while the absence of actual harm and the support from the victim were mitigating factors, the planning and nature of the offence were significant aggravating factors. The court also considered the applicant’s rehabilitation prospects and lack of remorse, ultimately deciding that a re-sentencing was necessary. The court imposed a lesser sentence, taking into account the various mitigating and aggravating factors, and concluded that special circumstances warranted a reduced penalty.

Orders