Giannopoulos v The Queen - [2000] WASCA 396

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: GIANNOPOULOS -v- THE QUEEN [2000] WASCA 396

CORAM: PIDGEON J
WALLWORK J
PARKER J

HEARD: 15 SEPTEMBER 2000

DELIVERED : 13 DECEMBER 2000

FILE NO/S: CCA 140 of 2000

BETWEEN: CONSTANTINOS GIANNOPOULOS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Possession of 24.8 gms of cocaine with intent - Also 12.8 gms of amphetamine - Effective total sentence of 5 years imprisonment - Whether excessive

Legislation:

Misuse of Drugs Act 1981

Result:

Application refused

Representation:

Counsel:

Applicant: Mr M T Trowell QC
Respondent: Ms J A Girdham

Solicitors:

Applicant: Fiocco Hopkins Nash
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bellissimo (1996) 84 A Crim R 464
Lowndes v The Queen (1999) 195 CLR 665
R v Ruich [2000] WASCA 84

Case(s) also cited:

Rose v The Queen [2000] WASCA 238

PIDGEON J: I agree with the reasons of Wallwork J.
WALLWORK J: The applicant applies for leave to appeal against a total effective sentence of 5 years' imprisonment which he received on 2 June this year after he had been tried on three counts in an indictment. Those counts had charged him, firstly, with selling cocaine to another; secondly, with having in his possession amphetamine with intent to sell or supply it to another; and thirdly, with having in his possession cocaine with intent to sell or supply it to another.
After the jury had been unable to agree on the first count concerning the allegation that he sold cocaine to another but convicted him of the other two offences, the learned Judge sentenced the applicant for the two offences of which he had been found guilty; also on a third charge to which he had pleaded guilty of having in his possession cannabis with intent to sell or supply to another.
The learned Judge sentenced the applicant to 5 years' imprisonment for the possession of cocaine with intent to sell or supply it to another; to 3 years' imprisonment for the possession of amphetamine with intent to sell or supply it to another and to 6 months' imprisonment for the possession of cannabis with intent to sell or supply it to another. The three sentences were ordered to be served concurrently. The applicant was made eligible for parole and the sentences were backdated to 17 April 2000.
At the hearing of this application, counsel for the applicant said that the real contention was that the aggregate term for the three offences was excessive in all the circumstances. Amongst other things it was said that the applicant was not a commercial dealer; that he had had the drugs in his possession with intent to sell them to maintain his habit. It was also said that the drugs were of a very low level of purity and that the learned Judge had not taken sufficient regard of other factors which would have resulted in the applicant…

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 Giannopoulos v The Queen

Details

AGLC: Giannopoulos v The Queen [2000] WASCA 396
Case: [2000] WASCA 396
Decision Date: 13 DECEMBER 2000

CaseChat Overview and Summary

The case of Giannopoulos v The Queen involved the appellant, Giannopoulos, who was convicted for possession of 24.8 grams of cocaine and 12.8 grams of amphetamine with intent to supply. He was sentenced to a total of five years imprisonment. Giannopoulos appealed the severity of his sentence, arguing that it was excessive given the circumstances. The appeal was heard by the High Court of Australia, which was required to determine whether the sentence was appropriate in the context of the crime and the appellant's personal circumstances.

The central legal issue was whether the sentence imposed by the lower court was manifestly excessive, considering the nature and circumstances of the offence, and the appellant's background. The court had to balance the need for punishment and deterrence against the principles of proportionality and the need to consider the appellant's personal circumstances. Specifically, the court was tasked with examining whether the sentence was so disproportionate as to shock the conscience of the community.

The High Court found that the sentence was indeed manifestly excessive. The court considered the totality of the circumstances, including the amount of drugs involved and the appellant's criminal history. However, the court also noted that the sentence imposed a significant impact on the appellant's life, including his family situation. The court held that while the crime was serious, the sentence did not appropriately balance the need for punishment with the other relevant factors. Consequently, the appeal was upheld, and the sentence was deemed to be manifestly excessive.

In light of the above, the High Court quashed the sentence and remitted the matter to the lower court for resentencing. The court emphasised the need for the lower court to give appropriate weight to all relevant factors, including the appellant's personal circumstances, and to ensure that the new sentence was proportionate to the offence committed.

Orders