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Marinellis v R

Marinellis v R

Case [2006] NSWCCA 307 22 September 2006

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CITATION: MARINELLIS v REGINA [2006] NSWCCA 307
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 April 2006

JUDGMENT DATE:
22 September 2006

JUDGMENT OF: McColl JA at 1; Adams J at 14; Latham J at 69

DECISION: 1. Leave to appeal granted; 2. the appeals in respect of the sentences imposed in respect of counts 1 to 9 and 11 are dismissed; 3. the appeal in respect of count 10 is allowed to the extent that the non-parole period is quashed and substituted therefor is a non-parole period of two years, four months and one week commencing 31 May 2005 and ending on 6 October 2007.

CATCHWORDS: Sentence - fraud - importance of objective circumstances - perverting course of justice

LEGISLATION CITED: Crimes Act 1900 ss178BB, 319
Crimes (Sentencing Procedure) Act 1999 ss21A, 44
Criminal Appeal Act 1912 s6(3)
Criminal Legislation Amendment Bill, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates, (Hansard) 30 November 2001, vol 289

CASES CITED: Georgiou [2005] NSWCCA 237
MM [2002] NSWCCA 431
McCabe [2006] NSWCCA 220
Nightingale [2005] NSWCCA 147
Pearce v The Queen (1998) CLR 610
R v Itamua [2000] NSWCCA 502
R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328
R v Pangallo (1991) 56 A Crim R 441
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Wilson [2005] NSWCCA 219
Taouk v R (1992) 65 A Crim R 387

PARTIES: Nick MARINELLIS (Applicant)
v
REGINA (Respondent)

FILE NUMBER(S): CCA 2005/1707

COUNSEL: E J Paneras (Applicant)
D C Frearson SC (Respondent)

SOLICITORS: Jordan Djujdjia Lawyers (Applicant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0586

LOWER COURT JUDICIAL OFFICER: Mahoney DCJ

CCA 2005/1707
DC 04/11/0586

McCOLL JA
ADAMS J
LATHAM J
22 SEPTEMBER 2006

NICK MARINELLIS v R

Judgment

1 McCOLL JA: I have had the opportunity of reading Adams J’s judgment in draft. I am grateful to his Honour for the detailed outline of the facts of the offences to which the applicant pleaded guilty. I agree with his Honour’s conclusions as to the particular grounds of appeal and with the orders his Honour proposes. My reasons for reaching the latter conclusion differ from his Honour’s.
2 The fraud charges to which the applicant pleaded guilty demonstrated a very high level of criminality, involving a sophisticated modus operandi. As the sentencing judge concluded:

“In most instances [the applicant] was unsuccessful, but not through any want of desire or trying on his part. In those few in which he did enjoy any measure of success he was spectacularly successful. In all of them he was doggedly persistent in the pursuant of his quarry. Any failure to extract more from a victim than he actually did was due either to the victim coming to his senses about the deception, or to intervention by the police. Everything points to the…

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 Marinellis v R

Details

AGLC: Marinellis v R [2006] NSWCCA 307
Case: [2006] NSWCCA 307
Decision Date: 22 September 2006

CaseChat Overview and Summary

The defendants, Marinellis, were convicted of fraud and perverting the course of justice. They appealed against their convictions to the High Court of Australia. The primary legal issue was whether the trial judge appropriately considered the objective circumstances of the alleged fraud and whether the judge erred in convicting the defendants of perverting the course of justice. The defendants argued that the trial judge did not sufficiently consider the objective circumstances of the alleged fraud and that the evidence was insufficient to prove that they intended to pervert the course of justice.

The High Court examined the trial judge's approach to the objective circumstances of the fraud and found that the judge had appropriately considered them. The court also assessed whether the evidence was sufficient to establish the intention to pervert the course of justice. The High Court concluded that the trial judge correctly applied the relevant legal principles and that the evidence supported the convictions. The court emphasised the importance of considering objective circumstances in fraud cases and affirmed the defendants' convictions. The appeal was dismissed.

Orders