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Efthimiadis v R

Efthimiadis v R

Case [2013] NSWCCA 276 14 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Efthimiadis v R [2013] NSWCCA 276
Hearing dates: 23 October 2013
Decision date: 14 November 2013
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Latham J at [84]
Decision:
Application for extension of time to appeal against sentence refused

Catchwords: CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in February 2010 - Applicant convicted after trial of solicit to murder (s.26 Crimes Act 1900) - offence subject to standard non-parole period - Applicant (42 years old) solicits another person to murder Applicant's partner (19 years old) - motive to obtain custody of two-year old child of relationship - offence committed in breach of conditional liberty - significant criminal history - importance of specific and general deterrence - sole ground of appeal asserted Muldrock error - Muldrock error conceded by Crown - whether some lesser sentence is warranted in law - held no lesser sentence is warranted - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Abdul v R [2013] NSWCCA 247
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Bou-Antoun v R [2008] NSWCCA 1
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Burton [2008] NSWCCA 128
R v Louizos [2009] NSWCCA 71; 194 A Crim R 223
R v Nguyen [2013] NSWCCA 195
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Potier [2004] NSWCCA 136
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
Texts Cited: ---
Category: Principal judgment
Parties: Theodore Efthimiadis (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms JS Manuell SC (Applicant)
Ms MM Cinque (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

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

Citation:

---

Date of Decision:

2010-02-17 00:00:00

Before:

His Honour Judge CE O'Connor QC

File Number(s):

2007/9839

Judgment

HOEBEN CJ at CL: I agree with Johnson J and the order which he proposes.

JOHNSON J: The Applicant, Theodore Efthimiadis, applies for an extension of time to seek leave to appeal against sentence imposed on 17 February 2010 at the Gosford District Court following his conviction by a jury on a charge of solicit to murder contrary to s.26 Crimes Act 1900.

The maximum penalty for solicit to murder is imprisonment for 25 years with a standard non-parole period of 10 years set by statute.

On 17 February 2010, following his conviction by a jury at trial, the Applicant was sentenced by his Honour Judge O'Connor QC to imprisonment comprising a non-parole period of 10 years commencing on 17 December 2007 and expiring on 16 December 2017, with a balance of term of three years and four months commencing on 17…

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 Efthimiadis v R

Details

AGLC: Efthimiadis v R [2013] NSWCCA 276
Case: [2013] NSWCCA 276
Decision Date: 14 November 2013

CaseChat Overview and Summary

Efthimiadis was convicted and sentenced for soliciting another person to murder his 19-year-old partner. The motive was to gain custody of their two-year-old child. The offender was sentenced in February 2010, and the Crown conceded that there was a Muldrock error. The offender appealed against the sentence, claiming the sentence was manifestly excessive, and also sought an extension of time to appeal. The court was required to determine whether the sentence was manifestly excessive and if the application for an extension of time should be granted.

The court considered the applicant's criminal history, which was significant, and the breach of conditional liberty at the time of the offence. The applicant's motive for the offence was to gain custody of his child, and the court found that the applicant's prospects of success on appeal were insufficient. The court considered the importance of specific and general deterrence in sentencing and found that no lesser sentence was warranted. The court found that the sentence was not manifestly excessive and dismissed the application for an extension of time to appeal.

The court held that the sentence was not manifestly excessive and dismissed the application for an extension of time to appeal. The applicant's criminal history, the breach of conditional liberty, and the importance of specific and general deterrence were all considered in the court's reasoning. The court found that the applicant's prospects of success on appeal were insufficient, and therefore, no lesser sentence was warranted. The court's decision was based on the evidence and the law applicable to the case.

Orders