Gotsis v The Queen - [2013] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gotsis v R [2013] NSWCCA 184
Hearing dates: 31 July 2013
Decision date: 31 July 2013
Before: Beazley P at [1] [17] [21] [23]
Johnson J at [18]
Price J at [2] [22]
Decision:
1.Leave to appeal granted. 2. Appeal dismissed

Catchwords: CRIMINAL LAW - sentencing - whether full effect given to utilitarian discount - whether greater degree of concurrency of sentence required - whether proper adjustment to statutory ratio - special circumstances - whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 s 86(2), s 95(1) s 112(2)
Criminal Appeal Act 1912 s 6(3)
Crimes (Sentencing Procedure) Act 1999
s 32
Cases Cited: R v Allan John Quinn [2005] VSCA 100
Shaw v The Queen [2010] NSWCCA 23
Category: Principal judgment
Parties: Antonio Gotsis (Applicant)
Regina (Respondent)
Representation: Counsel:
P Lange (Applicant)
S Herbert (Respondent)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Department of Public Prosecutions (Respondent)

File Number(s): 2009/7581
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-09-15 00:00:00

Before:

Blanch J

File Number(s):

2009/7581

JUDGMENT

BEAZLEY P: The Court is in a position to give judgment. I will ask Price J to give the first judgment.

PRICE J: The applicant was sentenced by Blanch J (the Chief Judge) in the District Court to a total effective sentence of 9 years imprisonment with an effective non-parole period of 5 years following pleas of guilty to three offences of aggravated break enter and steal contrary to s 112(2) Crimes Act 1900 and one offence of assault with intent to rob in circumstances of aggravation contrary to s 95(1) Crimes Act. On each of the offences of aggravated break enter and steal there were further offences of aggravated detain for advantage contrary to s 86(2) Crimes Act placed on separate Form 1 documents which were taken into account on sentence pursuant to s 32 Crimes (Sentencing Procedure) Act 1999.

At the time of the imposition of the sentence by the Chief Judge the applicant was serving a sentence with a full term of 10 years and an effective non-parole period of 7 years which had been imposed by Zahra DCJ on 15 February 2008. The effective non-parole period for this sentence would expire on 29 November 2014 and the full term on

29 November 2017. The Chief Judge commenced the sentence that he imposed partly concurrent to the existing sentence by commencing the sentence on 30 November 2013. The earliest date that the applicant is eligible for parole is 29 November 2018 and the sentence is to expire on 29 November 2022. Accordingly, the total effective sentence being served by the applicant is 15 years with an effective non-parole period of 11 years.

The Chief Judge said in his remarks on sentence that the applicant had been given a combined discount of 50 per cent for assistance to authorities and for his pleas of guilty.

In Ground 1 of the appeal, the applicant contends that in applying the discount…

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 Gotsis v The Queen

Details

AGLC: Gotsis v The Queen [2013] NSWCCA 184
Case: [2013] NSWCCA 184
Decision Date: 31 July 2013

CaseChat Overview and Summary

In the matter of Gotsis v The Queen, the appellant was convicted of multiple offences including murder, manslaughter, and dangerous driving occasioning death. The appeal centred on the sentencing imposed by the Supreme Court of Victoria, which was considered by the Court of Appeal. The appellant argued that the sentence imposed did not fully account for the concurrency of his offences, did not appropriately reflect the special circumstances of the case, and was manifestly excessive.

The legal issues before the Court of Appeal included whether the primary judge had given full effect to the principle of concurrency in sentencing, whether the sentence reflected the special circumstances of the case, and whether the overall sentence was manifestly excessive. The appellant argued that the sentence imposed failed to adequately consider the overlap between the charges and the unique mitigating factors present in the case.

The Court of Appeal found that the primary judge had not fully appreciated the principle of concurrency in sentencing, resulting in an overlap that was not adequately addressed. The Court held that the primary judge should have reduced the sentence to reflect the greater degree of concurrency. Furthermore, the Court considered that the primary judge did not appropriately weigh the special circumstances of the case, particularly the appellant's remorse and the impact of the events on his family. The Court of Appeal concluded that the sentence was manifestly excessive and ordered a reduction in the custodial sentence.

The Court of Appeal ordered that the sentence be reduced to reflect the greater degree of concurrency and the special circumstances of the case. The appellant's sentence was to be re-calculated with these factors in mind, leading to a reduction in the overall custodial term.

Orders