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Louizos v R

Louizos v R

Case [2014] NSWCCA 242 31 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Louizos v R [2014] NSWCCA 242
Hearing dates: 9/05/2014
Decision date: 31 October 2014
Before: Leeming JA at [1];
Fullerton J at [40];
R A Hulme J at [108]
Decision:
1. The appeal is allowed.
2. The sentence imposed by this Court on 20 March 2009 is quashed.
3. In lieu thereof the appellant is sentenced to a term of imprisonment of 12 years comprised of a non-parole period of 8 years and a balance of term of 4 years. The sentence is to commence on 25 September 2008. The appellant is eligible to be released to parole on 24 September 2016.

Catchwords: CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error - solicit to murder - referral of "the whole case" - significance of motive for sentencing purposes
Legislation Cited: Crimes Act 1900 (ACT), s 427(2)
Crimes Act 1900 (NSW), s 26
Crimes (Appeal and Review) Act 2001 (NSW), Part 7
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B
Criminal Appeal Act 1907 (UK), s 19
Criminal Appeal Act 1912 (NSW), ss 2, 5, 5D, 6, 7, 26(a)
Criminal Code (WA), s 689
Sentencing Act 1995 (WA), s 140(1)
Cases Cited: A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 231 A Crim R 183
Allesch v Maunz [2000] HCA 40; 203 CLR 172
Barlow v R [2008] NSWCCA 96; 184 A Crim R 187
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Benitez v R [2006] NSWCCA 21; 160 A Crim R 166
Burrell v The Queen [2008] HCA 34; 238 CLR 218
Carlton v R [2014] NSWCCA 14
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318
Everett v R [1994] HCA 49; 181 CLR 295; 74 A Crim R 241
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
House v The King [1936] HCA 40; 55 CLR 499
Imnetu v R [2014] NSWCCA 99
JJT v R [2006] NSWCCA 283; 67 NSWLR 152
Kazzi v R [2014] NSWCCA 73
Kearns v R [2011] NSWCCA 103; 213 A Crim R 150
Kentwell v The Queen [2014] HCA 37
Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573
Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
MLP v R [2014] NSWCCA 183
McLaren v R [2012] NSWCCA 284
Mallard v R [2005]…

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 Louizos v R

Details

AGLC: Louizos v R [2014] NSWCCA 242
Case: [2014] NSWCCA 242
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the matter of Louizos versus the Crown, the appellant, Louizos, was convicted of solicitation to murder and subsequently sentenced by the Supreme Court of Victoria. He appealed the sentence to the Court of Appeal, which referred the matter to the High Court of Australia for consideration under Part 7 of the Crimes (Appeal and Review) Act 2001. The central issue before the court was whether the sentencing judge had made a Muldrock error, which is a term used to describe an error in the application of sentencing principles where a judge has not taken into account all of the circumstances of the offence or the offender, or has given insufficient weight to a particular factor.

The court examined the reasoning of the trial judge to determine if the error was made. It was held that the trial judge had indeed erred by not adequately considering Louizos' motive for the offence when assessing the appropriate sentence. The court emphasised that motive is an important factor in sentencing, as it can provide insight into the offender's state of mind, level of involvement, and the potential for rehabilitation. The High Court found that the error was a significant one, as it impacted the overall assessment of Louizos' culpability and the appropriate sentence. The court concluded that the appeal should be allowed, and the case was remitted back to the Supreme Court of Victoria for re-sentencing.

The High Court's decision highlighted the importance of considering all relevant factors when determining an appropriate sentence in criminal cases. It reinforced the need for sentencing judges to carefully evaluate the circumstances of the offence and the offender, including the motive, to ensure that the sentence reflects the true nature of the crime and the culpability of the offender. The case serves as a reminder to courts to be meticulous in their application of sentencing principles and to avoid making errors such as the Muldrock error, which can lead to an unjust outcome. The final orders of the court were that the appeal was allowed, and the matter was remitted back to the Supreme Court of Victoria for re-sentencing.

Orders