Gavellas v The The King - [2022] NSWCCA 229

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gavellas v R [2022] NSWCCA 229
Hearing dates: 11 October 2022
Date of orders: 25 October 2022
Decision date: 25 October 2022
Before: Macfarlan JA at [1]
Button J at [2]
Wilson J at [3]
Decision:
1. An extension of time in which to file an application for leave to appeal is granted until 22 August 2022;
2. Uphold ground 2;
3. Dismiss the appeal.

Catchwords:
CRIME – appeal against sentence – specially aggravated break enter commit serious indictable offence being assault occasioning actual bodily harm – Form 1 offence of intentionally damaging property – principal offence involved violence and was committed in company – question of whether aggravating features under s 21 Crimes (Sentencing Procedure) Act 1999 (NSW) were incorrectly held to exist – question of error of fact made by sentencing judge - factual error established – no lesser sentence warranted – appeal dismissed.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Supreme Court (Criminal Appeal) Rules 2021

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [No 1 of 2002] (2002) 56 NSWLR 146
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v R [2005] NSWCCA 186
Lay v R [2014] NSWCCA 310
R v Henry (1999) 46 NSWLR 346

Category: Principal judgment
Parties: C Gavellas (Applicant)
The King (Respondent)
Representation:
Counsel:
T Bicanic (Applicant)
J Roy (Respondent) (Crown)
Solicitors:
Proctor & Associates (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown) (Respondent)

File Number(s): 2019/371884
Publication restriction: An order was made in the District Court on 7 July 2021 that there be no publication of the names of the victim of the crime, or those of his immediate family
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 July 2021

Before:

G D Woods KC DCJ

File Number(s):

2019/371884

Judgment

MACFARLAN JA: I agree with Wilson J.
BUTTON J: I agree with Wilson J.
WILSON J: On 7 July 2021 Cooper Gavellas, the applicant, was sentenced before the District Court sitting at Gosford with respect to a charge of specially aggravated break and enter and commit serious indictable offence, the serious indictable offence being assault occasioning actual bodily harm, contrary to s 112(3) of the Crimes Act 1900 (NSW). The sentence imposed upon him, a term of imprisonment for 5 years and 3 months with a non-parole period of 3 years, took into account on a Form 1 document a further related offence of intentionally damaging property contrary to s 195(1)(a) of the Crimes Act. The sentence commenced on 26 November 2019 and will expire on 25 February 2025. The NPP expires on 25 November 2022.
By Notice filed on 22 August 2022, that is, over thirteen months after sentence was imposed, the applicant now seeks an extension of time in which to bring an application for leave to appeal.…

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 Gavellas v The The King

Details

AGLC: Gavellas v The The King [2022] NSWCCA 229
Case: [2022] NSWCCA 229
Decision Date: 25 October 2022

CaseChat Overview and Summary

Gavellas was the appellant and the King was the respondent in this appeal against sentence. The appellant had been found guilty of a range of offences, including breaking and entering, assault occasioning actual bodily harm, and damaging property. The appellant was sentenced to a total of five years' imprisonment with a non-parole period of three years. The appellant appealed on the basis that the sentencing judge had incorrectly held that aggravating features existed under section 21 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The central issue before the court was whether the sentencing judge had erred in finding that the aggravating features existed, and whether this constituted an error of fact that warranted a lesser sentence. The appellant argued that the sentencing judge had failed to consider all of the relevant facts and had not properly assessed the weight to be given to each fact. The respondent argued that the sentencing judge had properly considered the facts and had not erred in finding that the aggravating features existed.

The court found that the sentencing judge had made an error of fact in finding that the aggravating features existed, as the judge had not properly assessed the weight to be given to certain facts. However, the court also found that this error did not warrant a lesser sentence, as the overall sentence was appropriate in the circumstances. The court dismissed the appeal and upheld the original sentence.

The court's decision was based on a careful consideration of the evidence and the principles of sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW). The court found that while the sentencing judge had made an error of fact, this did not result in a manifestly unjust sentence. The court also noted that the appellant had a history of offending and had shown little remorse for his actions. The appeal was dismissed and the original sentence was upheld.

Orders