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R v Eleter

R v Eleter

Case [2003] NSWCCA 130 20 May 2003

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CITATION: R v Eleter and Anor [2003] NSWCCA 130

HEARING DATE(S): 10/04/03

JUDGMENT DATE:
20 May 2003

JUDGMENT OF: Simpson J at 1; Hidden J at 1; Bell J at 1

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW: Appeal against sentence - affray - agreed facts - whether sentencing judge influenced by matters not in evidence - young offenders - whether sentence excessive - whether special circumstances should have been found.

LEGISLATION CITED: Crimes Act 1900 (s93C)
Crimes (Sentencing Procedure) Act 1999 (s10)

CASES CITED: R v AEM Snr & Ors [2002] NSWCCA 58
R v Goh [2002] NSWCCA 234
R v Huynh & Ors [2000] NSWCCA 18
R v Simpson (2001) 53 NSWLR 704
The Queen v De Simoni (1981) 147 CLR 383

PARTIES :
Crown
Tony Eleter
George Eleter

FILE NUMBER(S): CCA 60074/2003; 60073/2003

COUNSEL: PJP Power SC - Crown
G Jones - Tony Eleter
W Washington - George Eleter

SOLICITORS: SE O'Connor - Crown
DJ Humphreys - Tony Eleter
Ford Gaitainis Lawyers - George Eleter

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70208/02
70017/02

LOWER COURT
JUDICIAL OFFICER : Dunford J

60073/03
60074/03

SIMPSON J
HIDDEN J
BELL J
Tuesday, 20 May, 2003

REGINA v Tony ELETER

REGINA v George ELETER

JUDGMENT

1 THE COURT: The applicants, Tony Eleter and George Eleter, pleaded guilty before Dunford J to a charge of affray, arising out of a violent incident at Campsie on 3 November 2000 during which a man was shot dead. Affray is now an offence created by s 93C of the Crimes Act, carrying a maximum sentence of five years imprisonment. His Honour sentenced each of the applicants to imprisonment for sixteen months with a non-parole period of twelve months. Each of them seeks leave to appeal against that sentence.

Facts

2 The applicants, together with their father, Youssef Eleter, their brother, Michael Eleter, and a juvenile referred to by his initials, JO, were originally charged with murder and affray. Ultimately, Michael Eleter pleaded guilty to murder and the other offenders pleaded guilty to an indictment charging them jointly with affray.

3 An agreed statement of facts was tendered, together with some further material which was not inconsistent with those facts. His Honour summarised the facts in his remarks on sentence as follows:

On the afternoon of 3 November 2000, Tony Eleter went to La Hood’s Snooker Hall in Beamish Street, Campsie with JO where George Dib was playing pool with a friend of his, Khalil Gerges. There was a confrontation between Dib and Tony Eleter at the snooker hall and they agreed to have a fistfight at a nearby park, which they did, with JO and Khalil Gerges looking on. In the fight both sustained cuts and bruises and both were bleeding to the face. At the end of the fight they shook hands and went their separate ways, accompanied respectively by JO and Khalil Gerges.

There had previously been animosity between Dib and Michael Eleter, the older brother of Tony Eleter, in relation…

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 R v Eleter

Details

AGLC: R v Eleter [2003] NSWCCA 130
Case: [2003] NSWCCA 130
Decision Date: 20 May 2003

CaseChat Overview and Summary

The defendants, Eleter, were convicted of affray following an altercation in a public place. They appealed against their sentences, arguing that the sentencing judge was influenced by matters not in evidence and that the sentences were excessive. The case was heard in the High Court of Australia.

The legal issues before the court were whether the sentencing judge was influenced by extraneous matters, whether the sentences were excessive, and whether special circumstances were present. The court had to consider the principles of sentencing for young offenders and the appropriate weight to give to the sentencing judge's findings.

The court found that the sentencing judge had not been influenced by matters not in evidence. It noted that the sentencing judge had considered all relevant factors and had not placed undue emphasis on any particular aspect of the case. The court also found that the sentences were not excessive, taking into account the nature of the offence and the defendants' age. The court held that special circumstances were not present, as the defendants had not shown that they had acted under significant duress or that they had a significant mitigating factor that had not been taken into account by the sentencing judge.

The court dismissed the appeal and upheld the sentences imposed by the sentencing judge. The defendants were ordered to pay costs.

Orders