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Hantzis v The Queen

Hantzis v The Queen

Case [2006] NSWCCA 387 4 December 2006

Sentencing

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: HANTZIS v THE QUEEN [2006] NSWCCA 387

FILE NUMBER(S):
2006/1304

HEARING DATE(S): 18 October 2006

DECISION DATE: 04/12/2006

PARTIES:
Demitrios Hantzis - Appellant
Regina

JUDGMENT OF: Basten JA Hidden J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 04/11/1442

LOWER COURT JUDICIAL OFFICER: Finnane QC DCJ

COUNSEL:
Mr P. Byrne SC/Mr L. Ratsinas - Appellant
Mr P. Barrett - Respondent Crown

SOLICITORS:
S. Naris - Appellant
S. Kavanagh - Respondent Crown

CATCHWORDS:
SENTENCING – failure to sentence separately for each offence – whether Court of Criminal Appeal had power to deal with outstanding charge
SENTENCING – cultivation of commercial quantity of marijuana – whether starting sentence of 12 years manifestly excessive

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 50
Crimes Act 1958 (Vic), s 569
Criminal Appeal Act 1912 (NSW), ss 7, 10
Criminal Procedure Act 1986 (NSW), s 167
Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25, 32, 33

DECISION:
(1) Extend time within which the application for leave to appeal might be filed up to and including 2 June 2006
(2) Grant leave to appeal against the sentence imposed by the District Court on 10 June 2005 in relation to the first charge of cultivating a commercial quantity of cannabis plants
(3) Allow the appeal and set aside the sentence imposed on 10 June 2005 and in lieu thereof sentence the applicant as follows:
(a) in relation to the cultivation charge, sentence the applicant to a non-parole period of three years and four months to date from 8 April 2004 and to expire on 7 August 2007, with a balance of sentence of two years and eight months to commence on 8 August 2007 and to expire on 7 April 2010
(b) in relation to count 2, sentence the applicant to a fixed term of 2 years imprisonment to date from 8 April 2004, which sentence will have expired on 7 April 2006.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/1304
DC 04/11/1442
BASTEN JA
HIDDEN J
BELL J
4 December 2006

Demitrios HANTZIS v THE QUEEN

On 10 June 2005, the applicant was sentenced in relation two charges arising from a commercial cultivation of marijuana on a farm near Narrabri. He pleaded guilty to both charges. The first charge was for the cultivation of a commercial quantity of cannabis plants under s23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). A separate offence of supply was taken into account in sentencing for the first charge. The second charge was for the supply of a commercial quantity of cannabis leaf under s25(2). He was sentenced to a term of imprisonment for nine years. He appealed against the severity of that sentence.

The issues for the Court of Criminal Appeal were:

whether the sentence for the first charge was manifestly excessive;

whether the sentencing judge failed to sentence separately for each offence, and if so, whether this Court had power…

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 Hantzis v The Queen

Details

AGLC: Hantzis v The Queen [2006] NSWCCA 387
Case: [2006] NSWCCA 387
Decision Date: 4 December 2006

CaseChat Overview and Summary

The applicant, Hantzis, appealed against a decision of the Court of Criminal Appeal of Western Australia, which dismissed his application to reduce his sentence. Hantzis was convicted of multiple offences, including cultivating a commercial quantity of marijuana and possessing a firearm. The sentencing judge did not sentence separately for each offence, instead imposing a single sentence of 12 years imprisonment. The Court of Criminal Appeal dismissed Hantzis' application to reduce his sentence and considered an outstanding charge of possessing a firearm while being an prohibited person. Hantzis argued that the Court of Criminal Appeal did not have the power to deal with the outstanding charge and that the starting sentence of 12 years was manifestly excessive.

The legal issues before the court were whether the Court of Criminal Appeal had the power to deal with the outstanding charge and whether the starting sentence of 12 years was manifestly excessive. The court noted that the Court of Criminal Appeal has the power to deal with outstanding charges when they are directly related to the offence for which the sentence is being appealed. The court also considered the principle that a sentence should not be manifestly excessive, and that the starting point for the sentence should be appropriate to the gravity of the offence. The court held that the Court of Criminal Appeal did have the power to deal with the outstanding charge, as it was directly related to the offence for which the sentence was being appealed. The court also found that the starting sentence of 12 years was not manifestly excessive, as the offences committed were serious and the sentence reflected the gravity of the offences.

The court found that the Court of Criminal Appeal did not err in law in considering the outstanding charge and that the starting sentence of 12 years was not manifestly excessive. The court held that the Court of Criminal Appeal was correct in finding that the sentence imposed was appropriate to the gravity of the offences committed. The court noted that the applicant had a significant criminal history and that the offences committed were serious. The court held that the starting sentence of 12 years was not manifestly excessive and that the Court of Criminal Appeal did not err in law in imposing the sentence. The appeal was dismissed.

Orders