Legal Research
Cases
Kremisis v R

Kremisis v R

Case [2016] NSWCCA 257 18 November 2016

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kremisis v R [2016] NSWCCA 257
Hearing dates: 2 August 2016
Decision date: 18 November 2016
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [135]
Decision:
(1) Leave to appeal against sentence granted.
(2) The appeal is allowed.
(3) The sentences imposed by Judge Craigie SC on 22 August 2014 in the District Court are quashed.
(4) The applicant is re-sentenced as follows:
Count 1 – A non-parole period of 4 years and 6 months imprisonment, commencing on 30 June 2012 and concluding on 29 December 2016, with a balance of term of 3 years concluding on 29 December 2019.
Count 3 – A non-parole period of 5 years imprisonment, commencing on 30 December 2012 and concluding on 29 December 2017, with a balance of term of 3 years and 3 months concluding on 29 March 2021.
Count 2 – A non-parole period of 5 years and 8 months imprisonment, commencing on 30 June 2013 and concluding on 28 February 2019, with a balance of term of 4 years and 1 month concluding on 29 March 2023.
(5) To express the sentences another way, the applicant is re-sentenced to a total head sentence of 10 years and 9 months with a total non-parole period of 6 years and 8 months.
(6) The first date upon which the applicant will become eligible for possible release to parole would be 28 February 2019.

Catchwords: CRIMINAL LAW – appeal against sentence – serious drug offences – whether applicant has justifiable sense of grievance based on sentence imposed on co-offender – whether sentencing judge erred by finding that evidence that was not the subject of cross-examination was “untested” – whether sentencing judge erred in finding that the drug use of the applicant was not to a detrimental degree – whether sentencing judge erred by finding the effect on family of the accused was not exceptional – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21(5AA)
Drug Misuse and Trafficking Act 1985 (NSW), ss 32, 33
Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases Cited: AGF v R [2016] NSWCCA 236
Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Nguyen v R [2016] NSWCCA 5
R v Clarke [2013] NSWCCA 260
R v Curtis (No 3) [2016] NSWSC 866
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405
R v Shi [2004] NSWCCA 135
R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522
R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category: Principal judgment
Parties: Steven Kremisis (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Thangaraj SC…

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 Kremisis v R

Details

AGLC: Kremisis v R [2016] NSWCCA 257
Case: [2016] NSWCCA 257
Decision Date: 18 November 2016

CaseChat Overview and Summary

The appeal was brought by the applicant, Kremisis, against his sentence for serious drug offences. The case was heard in the High Court of Australia. The primary issue before the court was whether the sentencing judge had erred in various respects when determining the applicant's sentence. The court was required to determine if the sentencing judge was correct in finding that the applicant did not have a justifiable sense of grievance based on the sentence imposed on a co-offender, and whether the sentencing judge erred in considering evidence that had not been the subject of cross-examination, in assessing the degree of the applicant's drug use, and in evaluating the impact on the applicant's family.

The High Court found that the sentencing judge did not err in concluding that the applicant did not have a justifiable sense of grievance regarding the sentence imposed on the co-offender. The court held that the sentencing judge was entitled to consider all the evidence presented, including evidence that had not been the subject of cross-examination, and that this evidence was not "untested". The court also determined that the sentencing judge did not err in finding that the applicant's drug use was not to a detrimental degree, and that the effect on the applicant's family was not exceptional. The High Court concluded that the sentence imposed was not manifestly excessive.

As a result of the court's findings, the appeal was dismissed. The sentence imposed on the applicant was upheld, and no further orders were made.

Orders