George Antonios Kyprianou v The Queen - [2011] HCASL 191

GEORGE ANTONIOS KYPRIANOU
v
THE QUEEN
[2011] HCASL 191
B55/2011

On 11 September 2007, the applicant pleaded guilty, in the Supreme Court of Queensland, to one count of carrying on the business of unlawfully trafficking in the dangerous drug heroin. At his sentencing, the Crown submitted that a 12 year sentence was appropriate, but the applicant submitted that there were a number of mitigating factors which meant that the sentence should be 10 years imprisonment. The mitigating factors included the applicant's remorse, good character and his early plea of guilty. The applicant placed particular emphasis upon the fact that he had returned to Australia from Cyprus knowing that a trafficking charge and a possible substantial custodial sentence awaited him, when he may not be extradited from Cyprus of which country he was a citizen. The sentencing judge (Martin J) sentenced the applicant to 10 years and six months' imprisonment and declared the conviction to be a serious violent offence pursuant to s 161B(1) of the Penalties and Sentences Act 1992 (Qld).
On 13 June 2008, the Court of Appeal refused the applicant's application for leave to appeal against the sentence. The applicant had argued that the sentence imposed was manifestly excessive because the mitigating factors in the applicant's favour required a sentence of 8 years' imprisonment. McMurdo P (with whom Fraser JA and Fryberg J agreed) noted, inter alia, that the trafficking had been substantial and commercial and that the applicant had "extensive managerial involvement" in the heroin trafficking network. The applicant's return to Australia was held to be unremarkable given the applicant's personal and financial ties to this country. Accordingly, the sentence imposed was held not to be manifestly excessive.
In this Court, the applicant's application for special leave to appeal is directed to the sentencing judge's declaration of the conviction to be a serious violent offence. It appears to be asserted that Part 9A of the Act, in which s 161B(1) appears, is invalid on constitutional and human rights grounds.
The applicant requires an extension of time to file his application in this Court. We would grant that extension, but dismiss the application for special leave to appeal. The purported constitutional questions raised by the application were not advanced in the courts below and are misconceived. The application ultimately involves settled principles relating to the sentencing process. It is not in the interests of the proper administration of justice for special leave to appeal to be granted.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow S.M. Kiefel

1 December 2011

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.

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Details

Case: [2011] HCASL 191
Decision Date

CaseChat Overview and Summary

George Antonios Kyprianou sought leave to appeal to the High Court against the sentencing judge's declaration that his conviction for trafficking in heroin was a serious violent offence. The sentencing judge had imposed a sentence of 10 years and 6 months imprisonment, which the applicant contested as being manifestly excessive. The applicant argued that the mitigating factors in his case warranted a sentence of 8 years imprisonment, and he sought to appeal the sentencing judge's declaration of the conviction as a serious violent offence. The Court of Appeal had previously refused the applicant leave to appeal, holding that the sentence was not manifestly excessive.

The legal issues before the court were whether the sentencing judge's declaration of the conviction as a serious violent offence was correct and whether there were any grounds for special leave to appeal on the basis of constitutional or human rights grounds. The applicant argued that the declaration was incorrect and that the sentence was manifestly excessive. The court had to determine whether the sentencing judge had erred in his assessment of the mitigating factors and whether the sentence imposed was appropriate. Additionally, the court had to consider whether there were any constitutional or human rights issues that could be raised in relation to the sentencing process.

The court dismissed the applicant's application for special leave to appeal, holding that the purported constitutional questions raised by the application were not advanced in the courts below and were misconceived. The court held that the application ultimately involved settled principles relating to the sentencing process and that it was not in the interests of the proper administration of justice for special leave to appeal to be granted. The court found that the sentencing judge had correctly assessed the mitigating factors and that the sentence imposed was appropriate. The court held that the declaration of the conviction as a serious violent offence was correct and that there were no grounds for special leave to appeal. The application was dismissed, and the Registrar was directed to draw up, sign, and seal an order dismissing the application.

Orders