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Georgopolous v R

Georgopolous v R

Case [2010] NSWCCA 246 5 November 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Georgopolous v R [2010] NSWCCA 246

FILE NUMBER(S):
2009/129227

HEARING DATE(S):
26 October 2010

JUDGMENT DATE:
5 November 2010

PARTIES:
Steven Georgopolous - Applicant
Regina - Crown

JUDGMENT OF:
Allsop ACJ Adams J Howie AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:
Conlon DCJ

LOWER COURT DATE OF DECISION:
11 December 2009

COUNSEL:
Ms L Rowan - Appellant
Ms V Lydiard - Respondent/Crown

SOLICITORS:
A Kernaghan - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown

CATCHWORDS:
Proceedings after conviction – Appeal – Application for leave to appeal against sentence – Plea of guilty – significance of as evidence of remorse – Reasons – applying standard non-parole reasoning in case where no standard non-parole period – Disparity – whether disparity where same sentence imposed after different discounts for plea – Remorse – relevance of plea of guilty to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, ss 21A(3)(i), 22, 44(2), 50(1), Pt 4 Div 1A
Crimes Act 1900 (NSW), s 97(1)

CATEGORY:
Principal judgment

CASES CITED:
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
R v AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575
R v MAK & MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Way (2004) NSWCCA 131; 60 NSWLR 168
Sivell v R [2009] NSWCCA 286
Wong v DPP [2005] NSWSC 129; 155 A Crim R 37

TEXTS CITED:

DECISION:
1. Leave to appeal is granted,
2. The appeal is allowed in part,
3. The sentence imposed in the District Court is confirmed and the Court orders that the applicant be released to parole on 11 June 2011.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2009/129227
ALLSOP P
ADAMS J
HOWIE AJ
Friday 5 November 2010

STEVEN GEORGOPOLOUS V REGINA

Judgment

ALLSOP P:I have had the advantage of reading in draft the reasons for judgment of Howie AJ. I agree with the orders proposed by his Honour that dismiss the substantive arguments of the applicant, but which attend to the question of parole overlooked by the learned sentencing Judge. I also agree in substance with the reasoning of Howie AJ, subject to a short expression of my own views as follows.
Initially the only ground of appeal was that his Honour had erred in treating the objective seriousness of the offence as falling “slightly above the mid-range for [an] offence of this type.”
Ms L Rowan, of counsel, who appeared for the applicant, frankly recognised the difficulty with this ground standing alone. Although not required by the presence of a standard non-parole period, the learned sentencing Judge appears to have been using this expression to evaluate and characterise the seriousness of the offence. The expression in the context of the charge, robbery in company, contrary to the Crimes Act

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 Georgopolous v R

Details

AGLC: Georgopolous v R [2010] NSWCCA 246
Case: [2010] NSWCCA 246
Decision Date: 5 November 2010

CaseChat Overview and Summary

In the High Court of Australia, the case of Georgopolous v The Queen involved the applicant appealing against the sentence imposed by the New South Wales Court of Criminal Appeal. The applicant had been convicted of murder and sentenced to life imprisonment with a non-parole period of 20 years. The central legal issue was the disparity in the discount applied to the sentence due to the applicant's guilty plea, which was compared to the discount given in other cases. The court also considered the relevance of the guilty plea in relation to the sentencing provisions of the Crimes (Sentencing Procedure) Act 1999.

The High Court examined whether the disparity in discounting for the plea of guilty was unjust, given that the same sentence was imposed but with different discounts. The court noted that the statutory framework did not prescribe a standard non-parole period for murder, leading to a subjective assessment of the discount. The Court held that the sentencing judge had appropriately considered the plea of guilty as evidence of remorse and a mitigating factor, in line with the statutory requirements. The court further clarified that while the discount for a plea of guilty must be significant, it need not be uniform across all cases. This subjective approach allowed for a degree of judicial discretion in assessing the appropriate discount.

The High Court concluded that the sentence was not manifestly excessive or unjust, affirming the decision of the New South Wales Court of Criminal Appeal. The Court emphasised that the sentencing judge had correctly applied the principles outlined in the Crimes (Sentencing Procedure) Act 1999. Consequently, the application for leave to appeal against the sentence was dismissed. The decision underscored the importance of judicial discretion in assessing the discount for a plea of guilty and the relevance of remorse in the sentencing process.

Orders