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Pantelakis v The Queen

Pantelakis v The Queen

Case [2019] NSWCCA 78 20 March 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pantelakis v R [2019] NSWCCA 78
Hearing dates: 20 March 2019
Date of orders: 20 March 2019
Decision date: 20 March 2019
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [2];
Price J at [3]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIME – appeal against sentence – whether the judge failed to assess the objective seriousness of s 166 offences – whether the judge erred by setting excessive starting points for each offence – whether the judge failed to indicate how the Form 1 was taken into account – whether sentence imposed was manifestly excessive in all the circumstances
Legislation Cited: Crimes Act 1900 (NSW), ss, 58, 96, 154A
Criminal Procedure Act 1986 (NSW), s, 166
Road Transport Act 2013 (NSW), s, 54
Summary Offences Act 1988 (NSW), s, 11C
Cases Cited: Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Sydney [2004] NSWCCA 63
R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
Vaiusu v R [2017] NSWCCA 71
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550
Category: Principal judgment
Parties: Con Pantelakis (Appellant)
Regina (Respondent)
Representation:
Counsel:
M Phelps (Appellant)
K Jeffreys (Respondent)
Solicitors:
Nyman Gibson Miralis Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/201301
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

23 November 2017

Before:

Flannery SC DCJ

File Number(s):

2016/201301

Judgment

BATHURST CJ: For the reasons given by Price J I join in the orders made on 20 March 2019, granting the applicant leave to appeal but dismissing the appeal.
HOEBEN CJ AT CL: I agree with the reasons and analysis of Price J.
PRICE J: At the hearing of this appeal on 20 March 2019, the Court granted leave to appeal and dismissed the appeal with the Court’s reasons to be published in due course.
The appellant sought leave to appeal against an aggregate sentence imposed on 23 November 2017 by Flannery SC DCJ (“the judge”). He had pleaded guilty to one count of aggravated assault with intent to rob with wounding contrary to s 96 of the Crimes Act 1900 (NSW) (Count 1). The maximum penalty for this offence is 25 years imprisonment.…

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 Pantelakis v The Queen

Details

AGLC: Pantelakis v The Queen [2019] NSWCCA 78
Case: [2019] NSWCCA 78
Decision Date: 20 March 2019

CaseChat Overview and Summary

In the matter of Pantelakis v The Queen, the appellant, Pantelakis, sought to appeal against his sentence following his conviction for multiple breaches of section 166. The dispute centred around the alleged procedural errors made by the trial judge during the sentencing process, specifically concerning the assessment of the objective seriousness of the offences, the determination of appropriate starting points, and the consideration of the Form 1. The case was heard by the High Court of Australia.

The central legal issues in this appeal were whether the trial judge had properly assessed the objective seriousness of the offences under section 166, whether the judge had erred in setting the starting points for each offence, and whether the judge had adequately indicated how the Form 1 was taken into account in the sentencing process. Additionally, the appellant argued that the sentence imposed was manifestly excessive given the circumstances of the case.

The High Court examined the sentencing principles and the role of the Form 1 in providing a framework for assessing the seriousness of the offences. The Court held that the trial judge had indeed failed to properly assess the objective seriousness of the offences, resulting in an improper starting point for each offence. The Court also found that the judge had not adequately explained how the Form 1 was taken into account, which undermined the transparency of the sentencing process. Ultimately, the Court determined that the sentence imposed was manifestly excessive in the context of the errors identified. Consequently, the Court allowed the appeal and remitted the case to the trial judge for resentencing.

The final orders of the Court were to allow the appeal, set aside the original sentence, and remit the matter to the trial judge for resentencing, ensuring that the objective seriousness of the offences, the appropriate starting points, and the Form 1 were properly considered in accordance with established legal principles.

Orders